author: Dwight, P. J.

text:
    Millard F. Riley et al., Resp’ts, v. William C. Rea et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Warranty—Breach—Evidence.
    Plaintiff went to defendant's store and told him that he was looking for a car load of apples. Defendant said he had a cat load, and showed hint a half dozen barrels, which were perfectly sound and bright, and said the rest were at the railroad. Plaintiff asked how those would compare with the ones they were looking at, and defendant answered, “equally nice; just as nice," whereupon the sale was made. The goods on arrival were, found of a poor quality, and plaintiff realized nothing from their sale. In an action for breach of warranty the jury rendered a verdict in favor-of plaintiff for the full amount paid. Held, that the evidence of a warranty was conflicting, without a preponderance in favor of defendant, and the verdict would not he disturbed.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury at the Erie circuit, and from an order denying defendants’ motion for a new trial, made on the minutes of the court.

      M. Shire, for app’lts; M. B. Jewell, for resp’ts.
   Dwight, P. J.

The action was for a breach of warranty in. the sale of a car load of apples. The sale and the value of the goods were admitted, but both the warranty and its breach was-denied. The issues therefore presented two distinct questions of fact upon which the evidence was strongly conflicting, but a jury of the defendants’ neighbors, the place of trial having been changed from the plaintiffs’ county to that of the defendants, found on both questions in favor of the plaintiffs.' The manner of the warranty, as the evidence on the part of the plaintiffs tends; to show, was as follows: The plaintiff Riley went into the defendants’ place of business in Buffalo, saw the defendant Powell, and told him that he was looking for a car load of apples; Powell told him he had a car load and took him into the rear of the store-where were a quantity of barrels, of which he opened about half a dozen and showed him the apples; they were perfectly sound and bright, and the barrels full. Powell said there were not enough at the store to fill a car but they had more in a car at the railroad.

Plaintiff asked how those would compare with these he was-looking at, and defendant said they would be equally nice; just as nice; ” whereupon the sale was made of a car load of about 150 barrels free on board cars at Buffalo at $1.75 per barrel. The-charge of the court is not given in the case, there being no exception to it, but we must assume that the questions were submitted to the jury with proper instructions, whether the transaction was as above described, and whether the representations of' the defendant were intended by him, and understood by the-plaintiff, as a warranty that the apples to be shipped were of the-quality and condition of those which were shown. If so, the contract was not merely one of an implied warranty, as in the case of a technical sale by sample, where no representation.is made except, by the exhibition' of the sample itself, but was one of express warranty that the shipment should equal the sample exhibited. In .such case the exhibition is not to be regarded as a demonstration •of the quality of the goods sold, but as setting up a- standard to ' which the bulk of the goods shall conform.

Upon the question of the breach-of the warranty thus estab"tablished, the evidence was perhaps equally conflicting, though that on the part of the defendants related to the condition of the .apples when they were shipped at Buffalo on the 29th of August, while that on the part of the plaintiffs related to their condition when received and examined at Olean on the 2d of September; •and it was for the jury to say whether the great discrepancy in the two descriptions of the apples could be accounted for on the .theory of their deterioration in the three or four days which intervened. This question, also, we must assume, was submitted to ¡the jury with proper instructions, and it was determined adversely to the defendant by the verdict.

The warranty and its breach being thus established, the only question was of the amount of damages to be awarded. The verdict was for $300.10, being the whole price paid by the plaintiffs; :$2'73, and interest thereon to the day of trial. It was admitted by the plaintiffs that they sold some of the apples for from $90 to .‘$100, but their evidence tended to show that the freight which was paid by them, and the expense of sorting, wiping and repacking the apples, was equal to the sums realized on the sales; ¡and so the jury must have found.

All the questions of fact arising in the case have thus been properly submitted to the jury and determined in favor of the -plaintiffs. Only two exceptions are argued here, the first to the -denial of the defendants’ motion for a nonsuit and the second to the refusal of the court to direct a verdict for the defendants. The first presents only the question whether the representation •of the defendant Powell, as testified to by the plaintiff Biley, ■could be held to constitute a warranty of the quality and condition of the bulk of the apples sold ; and that question we have ■already sufficiently considered. The second exception, like the motion for a new trial, presents the question whether the evidence warranted a verdict for the plaintiff. Upon that question we ■need only say that while we find the evidence on the two prin■cipal questions of fact strongly conflicting, we do not find it so clearly preponderating in favor of the defendants on either of those question's as to justify us in setting aside the verdict.

The judgment and order appealed from must, therefore, be affirmed.

Macjomber and Lewis, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles W. Palmer, Resp’t, v. Augusta B. Gould et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    ,Specific performance—Contract—Authority to execute—Evidence.
    In an action for the specific performance of a contract to convey land owned by G. and B., which was signed, on the part of the vendors, by the. defendant G. for herself and also for defendants B. and wife, as their attorney in fact; the complaint was dismissed as to B.'s wife, she having-never authorized the signing of her name. On the trial it appeared by a, letter from B. to G., received before the signing of the contract, that B. had revoked any prior authority to sell given G., he saying: “ I, for one, shall keep what I have,” and no sufficient evidence of subsequent ratification by him being given, Held, that & judgment directing specific performance by B. must be reversed.
    Appeal from a judgment in favor of the plaintiff, entered on the findings and decision of the court, at the Monroe special term.

      Thomas Raines, for app’lts ; David Hays, for resp’t.
   Dwight, P. J.

The action was for the specific performance of a contract to convey land, which was signed on the part of the vendors by the defendant, Augusta B. Gould, for herself, and also in the names of the other two defendants, Augustus 0. Bowen and Jennie M. Bowen, as their attorney in fact. The land was owned by'Mrs. Gould and Augustus 0. Bowen, who were brother and sister, in undivided shares. Jennie M. Bowen was the wife-of Augustus 0., and had no interest in the land, except her inchoate right of dower. The complaint was dismissed as to her on-findings that Mrs. Gould had no authority to sign the contract for her, and that she had never ratified the act. The land consisted of a tract of nearly fifty acres in the city of Rochester, and the-price agreed to be paid was the sum of $50,000. Mrs. Gould lived in Rochester, where the contract was signed, while her brother had for many years lived in California, and was there at the time of the negotiation and the signing of the contract. The-learned court at special term decreed the specific performance of the contract as against him, on findings both of authority in hist sister, at the time, to sign for him, and of subsequent ratification of her act by him. We have found ourselves unable to-reach the conclusion that either of these findings is fully sustained by the evidence. There is evidence of declarations of Mrs. Gould, made at different times, mostly previous to any negotiations for the sale to the plaintiff, to the effect that she had received authority by letter from her brother to sell his interest in-the property with her own, but all this evidence, being objected to, was received only as against Mrs. Gould, and was, of. course,, inadmissible as against her brother. The finding of authority existing at the date of the contract, February 25,1890, must rest upon expressions said to have been contained in a letter from Mr. Bowen to his sister, written in October, 1889, and a letter enclosed therein addressed to one Beach, a real estate agent, who it appears had written to Bowen in regard to a proposed purchase of the land.

The letter to Mrs. Gould is not in evidence and was not produced on.notice to the defendants, Mrs. Gould testifying that she had not preserved it; but Beach testifies that she read it to him while he looked over her shoulder, and he undertakes to quote a. passage from it as follows: “You shall go on and negotiate the? sale of the property, with a sufficient security, bonus paid down,. .and when this is done under contract I will come on east and join you in a conveyance; I think you ought to get $1,000 an acre, but you have my idea and instruction as to what to do; as you ■are on the ground you know best, and do the best you can." Beach testified that he was thereupon employed by Mi’s. Gould to effect a sale of the land; that he did find a purchaser, and that .he then had an action pending against Mrs. Gould for his com.missions as her agent in the transaction. The letter to Beach is in evidence, and it contains these expressions: “In the first place I have delegated to my sister, Mrs. James Gould, the most of the preliminary arrangements of such sales as might be arrived at, she being joint in interest with me. She being on the spot can nego"tiate a sale and appeal to me for my endorsement of the same.” And further : “I have given my sister some of my leading ideas in connection with a sale; therefore I shall refrain from a series •of conditions to you, as they might be in conflict with her views of sales. I further stated to her, in the event of sale and forfeit money being put up, that I would come there and attend to the ■transfers with her." Mrs. Gould read the letter to Beach enclosed to her, as her brother, no doubt, intended she should, and it may, perhaps, be questioned whether in effect the two communications •taken together were intended to do more than to authorize her to negotiate with Beach for the sale proposed by him, and, even in respect to that, to require her to report the proposition to him for his acceptance before he should bind himself to convey. But assuming that there was in October a general authority conferred upon Mrs. Gould to sell her brother’s interest in the valuable property in question, there is a subsequent letter in evidence which must be regarded as completely countermanding any such ■authority previously given.

It was written by Bowen to Mrs. Gould under date of January 17, 1890, and, as the post-marks show, was mailed at his home in ■California January 20th, and received at Bochester February 2, 1890. In it he informs her that he had just had a conversation with a relative who had lately been at the east, and he writes: “ While in Bochester Mr. Gould made investigations of the relative value of real estate and says that we should be foolish to take any price which we might have thought was 1 good ’ when I was there six years ago. Therefore, having the right to change ■our own valuation upon our property, will say to you that I, for one, shall keep what I have, and advise you to - do the same, as the land will keep until such a time as I can be with you and, further, referring to something his sister had written of being annoyed by Beach's persistence, he writes: “ Do not be annoyed by his plans, but just dismiss him and rest satisfied to let things remain as they have been." This was the last communication made to Mrs. Gould by her brother, before she signed the contract in question. It would seem that this evidence must have been over-looked in reaching the conclusion that at the time of •entering into the contract with the plaintiff Mrs. Gould had her brother’s authority to sign it in his name.

The objection by the plaintiff that there is no allegation nor finding of a revocation of the authority once given by Bowen to Mrs. Gould, is not well taken. Issue was joined by the defendant Bowen on the question of authority by his denial that at the time of the execution of the contract Mrs. Gould had authority to sign it for him ; that denial was supported by the uucontradioted evidence furnished by the letter of January 17, 1890, and the defendant excepted both to an affirmative finding of the existence of such authority at the time of the execution of the contract, and to the refusal of the court to find that it did not then exist.

The conclusion of law of the court at special term to the effect that the defendant Bowen had ratified the act of Mrs. Gould in signing the contract in his name, is founded upon a finding of fact “ that on February 26, 1890, the defendant Gould sent to the defendant Augustus 0. Bowen, at California, a copy of said contract with full Information concerning her execution of the .same in his name as his agent, and on the 6th of March, 1890, the defendant Bowen received the said communication from the defendant Gould; and then had full knowledge of the contents of the said contract and of its execution by the defendant Gould, in his name as his agent; and that with such knowledge said defendant took no steps to notify plaintiff of his dissent from the action of the defendant Gould in his behalf, within a reasonable time thereafter.”

A very searching examination of the entire record in this case fails to disclose evidence which, as we think, is adequate to support this finding. Mr. Hiram L. Barker, of Bochester, was the attorney who, as the court finds, was employed and relied upon by Mrs. Gould to advise and assist her in the negotiation and transaction here involved. He too has a claim against Mrs. Gould of $1,000 for his commissions, of two per centum, on the entire purchase price named in the contract, and he was a witness, on the trial, for the plaintiff. He testifies that he caused to be made only one copy of the contract; that the original, signed by the plaintiff, and by Mrs. Gould for all of the defendants, he delivered to Palmer, the plaintiff, and the type written copy, signed by Palmer alone, he gave to Mrs. Gould to keep. On the same day that the contract was drawn and signed, he drew a power of attorney intended to be executed by Augustus 0. Bowen and Jennie M. Bowen, to which was attached an acknowledgment in blank, in due form for execution in the state of California, empowering Mrs. Gould “ to execute, acknowledge and deliver a . deed or deeds of all real estate owned by said Augustus 0. Bowen -(whether individually or in common with' any other person) situate in the city of Bochester * * * also to discharge mortgages and to release from the lien of any mortgage any part of the premises therein described ” etc., etc. This power of attorney, which makes no mention of the contract already executed, nor of a proposed conveyance to the plaintiff, with a blank certificate for the authentication of its acknowledgment by the proper ■officer in California, he delivered to Mrs. Gould with instructions to forward it to her brother. Though called four times during the trial, to meet tlie exigencies of the plaintiff’s case, he nowhere testifies that he ever directed, or suggested to her, that she send, her brother a copy of the contract; nor even that she inform him that such, or any contract had already been signed, nor that he furnished her with any copy of the contract to be sent to him. Mrs. Gould testifies that she sent the power of attorney to her brother the next day, but makes no mention in that-connection of having sent him a copy of the contract or that she informed him that any contract had been made. On her cross-examination,, apparently in answer to a direct question by counsel for the plaintiff, she says, “ Mr. Barker also gave me a cony of the contract to-send to my brother, L believe; I believe I sent that copy to my brother, with the power of attorney.”

This is the first and only mention in the case of a copy of the contract being sent to the defendant Bowen, or that one was made for that purpose. The evidence seems to us far too indefinite and uncertain to serve as the foundation of a finding that the defendant Bowen, with full knowledge of the unauthorized'act of his sister, ratified that act by his silence. Mi-. Bowen himself testifies-that he received the blank power of attorney, but makes no mention of the fact, nor is he asked the question either on direct or cross-examination, whether he received a copy of the contract, with it.

But even if it were to be found upon this evidence that the copy of the contract furnished by the attorney to Mrs. Gould, to-keep as he testifies, was enclosed by her with the powrer of attorney to Mr. Bowen and was received by him, it was a copy which bore the signature of Palmer alone, and did not inform the defendant that his name and that of his wife had been attached to-the original. It is true that in the heading of the document it is-described as an agreement made and executed by Augusta B. Gould and Augustus 0. Bowen and Jennie M. Bowen by said Augusta B. Gould, their attorney in fact, parties of the first part; but when the paper itself, by the absence of those signatures, indicates that it has not in fact been so executed, a person unfamiliar with the form and effect of legal documents, ana not informed of the fact otherwise than by the paper itself, might well be excused-for supposing that the contract, in blank, so far as the parties of the first part were concerned, was only a proposed contract, sent, to him for his approval and consent to its execution, and that the-blank power of attorney which accompanied it was intended to-obtain his authorization for such execution.

The evidence that Mr. Bowen was informed in any manner, or-to any extent, that Mrs. Gould had violated his latest instructions- and assumed to bind him by an unauthorized use of his name, is-quite insufficient, we think, to justify a decree for specific performance, as against him, of a contract which disposed of $50,000-worth of property.

The case against Mrs. Gould is without embarrassment from any question of authority; the contract was signed by her for herself and in her own name. It was in terms several as well as joint-, and the demand and tender on the part of the plaintiff covered a .severa! performance on the part of Mrs. Gould by a conveyance ■ of her undivided share.

The chief contention in behalf of Mrs. Gould is based upon ■two proposed findings of fact, both of which were refused by the •court. One of these was to the effect that the attorney Barker, • although with the knowledge of the plaintiff employed and relied upon by Mrs. Gould to aid and advise her in the transaction, was in fact in the employ of the plaintiff and was acting for him and in his interest in procuring the execution of the contract. The other proposed finding was to the effect that it was understood Between Mrs. Gould and the attorney, thus acting for and in the interest of the plaintiff, that Mrs. Gould consented to execute the contract only upon the condition that its provisions should receive ■the consent and concurrence of her brother, and that the contract should' be without force or effect until such consent and con-currence was obtained. It was upon these proposed findings that the conclusion was urged upon us, as upon the court below, to the effect that the contract was, as to her, unfair, harsh and oppressive and that its specific enforcement would be inequitable. A very careful consideration of the testimony in the case fails to satisfy us that the court was in error in refusing to make the findings requested, or that its actual findings in this respect were not supported by the evidence. The learned judge at special term had the advantage of personal observation of the parties and the witnesses testifying on these questions, and was better able than we are to determine where the truth lay amid the numerous -contradictions of their testimony. We cannot disturb the findings of fact in respect to the manner and the circumstances of the ■execution of the contract by Mrs. Gould in her own behalf.

The proposition that the provision for the payment of liquidated damages, contained in the contract, precludes the interposition of equity to decree specific performance, and that the plaintiff is remitted to his action at law to recover his damage thus stipulated, cannot be maintained. The cases, generally, cited in support of it, are those in which it is held that in an action for the collection of damages equity will relieve against a forfeiture or penalty, as such, but will enforce the payment of stipulated damages. Whereas, the unquestionable rule, as between specific enforcement and award of damages for non-performance, is that where, from the covenant itself and the surrounding circumstances, it is apparent that the primary intent was to have the covenant performed, equity will enforce it. Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y., 400, and the cases cited. ■ ■

The disposition of the question does not at all depend upon .any distinction between the terms “ penalty ” and “ liquidated damages.” Whichever term is used the question is whether the provision is made as security for the performance of the contract or as a substitute for performance. If the latter, the party will be denied his remedy in equity and confined to his recovery of damages ; if the former, equity will decree specific performance notwithstanding such provision. Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47; Gray v. Crosby, 18 Johns., 219. So in Long v. Bowring, 33 Beav., 585, damages were liquidated, but the master of the rolls said the real meaning of the clause Was not to give the covenantor the option to perform or pay the damages, but to give to the covenantee the option to have the covenant specifically enforced or in lieu thereof to accept the damages stipulated.

Upon the findings of the trial court we can have no doubt that a case was made for the enforcement of the specific performance of the several contract of the defendant Gould to convey her undivided share of the premises in question to the plaintiff.

The findings in respect to the deed from Mrs. Gould to her brother are undoubtedly supported by the evidence, and the judgment setting aside that deed was properly directed.

The views we have taken of the various questions in the case lead to the conclusion that the judgment as to the defendant Mrs. Gould should be affirmed, with costs; that as to the defendant. Augustus G. Bowen it should be affirmed in respect only to setting aside the deed of Mrs. Gould to him, and in all other respects reversed, and a new trial granted as to him, with the costs of this appeal to abide the final award of costs.

Macomber and Lewis, JJ., concur.


author: Macomber, J.

text:
    Margaret Kearney, Adm’rx, App’lt, v. Charles E. Morris, Executor, et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Partnership—Evidence oe—Accounting.
    In an action for an accounting of a partnership of which plaintiff’s intestate was alleged to have been a member, there were no written articles, of partnership, and the evidence as to intestate’s having been a partner was. conflicting. Written extracts from the firm’s books, showing that intestate received a share of the profits, coupled with the presumptions against the defendants, caused by the destruction of the firm’s books, Held, sufficient to establish a preponderance of evidence in favor of plaintiff.
    2. Same—Estoppel.
    In such action plaintiff is not estopped from demanding an accounting-because she received a sum of money from defendants in full payment of her claim, where it appears that the money was not paid her as a sum coming to the estate on the ground that the intestate had been a copartner,, but was offered and paid solely as a sum of money duo and owing by them to plaintiff, irrespective of any claim of copartnership.
    Appeal by the plaintiff, Margaret Kearney, the administratrix of the estate of Patrick Kearney, horn a judgment entered in Monroe county, November 17, 1888, upon, the decision of the court at special term dismissing the plaintiff’s complaint, but not upon the merits.

      O. L>. Kiehel, for app’lt; John Van Voorhis, for resp’ts.
   Macomber, J.

This action was brought against George H. Thompson and others for the purpose of obtaining an accounting of a copartnership which was alleged to have existed between the-plaintiff’s intestate, Patrick Kearney, George H. Thompson, Henry M. Ellsworth and John Luther. The partnership was. alleged to have existed from the 1st day of January, 1875, until the 22d day of December, 1879, when the plaintiff’s intestate died. The action was originally begun in the year 1880, but the defendant John Luther was not a party thereto. Upon the trial of the cause, however, in the year 1882, the learned justice presiding, after hearing the testimony of John Luther, who was called as a witness for the defendants, suspended the further hearing of the case, and directed that John Luther be brought in as a party defendant upon the ground that he was a partner in the firm-of -George H. Thompson & Co. After an amendment of the summons and complaint, proper answers were filed, and the case came on for trial before the same justice in December, 1887. After the submission of the case the learned justice held, as a matter of fact, that Patrick Kearney was not a copartner in the firm of Greorge H. Thompson & Co., and consequently his administratrix' •could not maintain this action. The complaint was accordingly dismissed, but not upon the merits. •

The learned justice was impressed, as his opinion indicates, with the exceedingly unsatisfactory condition of the evidence, which related largely to the declarations of deceased persons, Patrick Kearney and George H. Thompson. There were no written articles of copartnership. Evidence of the actions of the parties under the alleged agreement was accordingly resorted to, .and the case is. filled with declarations made by them under varying circumstances. Books of account seem to have been kept of the business of the company, which was shown to be quite extensive, but these books were not only not produced upon the trial, but it was shown that they had been surreptitiously disposed of.

But the case, nevertheless, shows some written evidence bearing upon the question of copartnership which, as far as it goes, is of •an entirely satisfactory and conclusive character. A written statement is produced in evidence by the plaintiff, shown to be in the handwriting of the defendant Ellsworth, and which purports to be taken from the books of the concern. That statement is as follows: (Exhibit C). “Statement for 1875 and 1876:

■“ Total profit on all work........................ $43,909 46
G. H. T..........-............$10,977 37
H. M. E...................... 10,977 36
P. K......................... 10,977 36
J. L.................... 10,977 37
$43,909 46”
(Endorsed) : “ Statement 1875 and 1876.”
Under another exhibit (D), dated January 8, 1878, the following entry appears: “ 1876, December 31. By profits on work for 1875 and 1876, $10,977.36.”
Under another statement (Exhibit E), bearing date September 25, 1878, the following occurs in regard to Patrick Kearney’s interest in the firm: September -25th. His share of the profits for 1877 to September 25, 1878, $5,350.00.”

In another exhibit (B), under date February 28,1880 : “ January 24th, by amount due P. Kearney, for his share in mason work,, etc., for 1879, $2,250.00.”

These several accounts, while they might have been incurred by a clerk or by a foreman of certain departments of the work of the concern, appear to resemble more nearly the accounts which a partner would naturally have with a concern having the extensive dealings of George H. Thompson & Co. It is, perhaps, not necessary to refer to such accounts further in detail.

Oral evidence was given by many witnesses in behalf of the plaintiff, that Mr. Thompson had in his lifetime stated to sundry persons that Mr. Kearney was a copartner in this firm. In several instances, such declarations were made under circumstances-that called upon Mr. Thompson to speak accurately in regard to-the fact. I will not quote such evidence at large ; but in one instance, an attorney who had a claim against Mr. Kearney, and who was interested in knowing his financial situation, applied to Mr. Thompson and received the information, as he testified, that. Kearney was actually a partner in the concern. This, upon the first hearing of the case, which was before the death of Mr. Thompson, was denied by the latter, who was called as a witness for the defendants.

The written exhibits above mentioned may also be perfectly consistent with the contention now made by the learned counsel' for the defendants, that the compensation given from time to time-to Kearney out of the earning of the firm was not profits coming to him as a copartner, but rather as compensation as an employee and foreman; or, as some of the witnesses testified, that these several sums were arbitrarily adopted by Mr. Thompson as suitable compensation to Kearney for his services. I say that these documents are not inconsistent altogether with such contention. But in order to break their natural prima facie influence upon the case, it seems to me that-, it was incumbent upon the defendants to show an actual agreement between Kearney and Thompson & Company; and further,, that such compensation to an apparent share of the profits was' resorted to only as a means of ascertaining a salary that had been agreed upon. But the evidence of John Luther, taken as a whole,, given in this case before he was made a party defendant, goes far to overthrow any such contention, because he, in effect, said Kearney was working for wages, and his compensation depended entirely upon the judgment of Mr. Thompson.

Participation in the profits of a co-partnership may or may not-be of importance as between the co-partners, according to the circumstances of each case. In the absence of other convincing evidence, documentary proof that one of the four men engaged-in the joint business had received a certain proportion of the-profits would raise a presumption that he received such profits as a co-partner, and not merely as a measure of his compensation as-an employee. Mr. Luther further testified, at the time stated,, that the profits had been divided into three parts, and that he-received one-third thereof. Exhibit C, above quoted, with great. conclusiveness, proves this statement to be erroneous as matter of memory; for it shows that there were four persons sharing in the profits, and that the sum coming to one was equal to that of any ■of the others, as is indicated by the initials of the four men conducting the business of the firm.

But it is claimed that there is oral evidence to the effect that Kearney was not a co-partner. This evidence consists of that of John Luther, who at first testified that Kearney was present when the co-partnership of George H. Thompson & Company was formed, but afterwards said there was no one present except Thompson, Ellsworth and himself. The defendant Ells worth testified that Kearney was not present at the time of the organization of this co-partnership.

Nathaniel Thompson, a witness for the defendant, and brother of the deceased George H. Thompson, gave, in 1882, evidence somewhat in detail to the effect that Kearney had repeatedly admitted to him at different times, under varying conditions, that he was not a member of the firm of George H. Thompson & Company at the time covered in this inquiry. The witnesses, John Siddons, John E. Seal, James D. Casey, John Fox, J. Herbert •Grant, Ambrose .McLaughlin, William T. Curtis and Joseph Lewis, also gave testimony of declarations alleged to have been made to them respectively by Kearney at different times.

The testimony of the witness Nathaniel Thompson, which ■originally was the most direct and circumstantial of all the witnesses, cannot be regarded as of very great weight, as he finally lost his character as a witness, when re-called at the continuation of the trial in 1887. At this last hearing he substantially admitted, as a witness, that under the direction of his brother, George H. Thompson, he was the means of spiriting away the account books of the firm covering nearly the whole of this period of time, and without apparent reluctance admitted that the purpose on his part was to destroy evidence of the actual existence of a co-partnership in which Kearney was one of the members. His testimony leaves the case with the advantage to the plaintiff of all those presumptions which a spoliation of written ■evidence creates against the perpetrator.

In respect to the testimony of the other witnesses, touching alleged oral declarations of Kearney supposed to have been made against his interest during the time covered by this alleged co-partnership, as well as the testimony of others relating to like declarations of George II. Thompson, it may briefly be said, though competent and relevant on the ground that they were made against the interest of the party, that a somewhat protracted perusal of the case in detail justifies the characterization .so often made of it, that there is no species of .evidence so susceptible to error, so inconclusive and misleading as the imperfect recollection of witnesses to merely ‘casual conversations upon subjects in which they were not specially concerned. ■

Upon the principal question of fact, therefore, it seems to this ■court, that, under the record sent to us, a preponderance of the evidence, which consists of written extracts from the books of the firm, coupled with the presumptions against the defendants which the destruction of the firm’s books creates, is in favor of the contention made in behalf' of the plaintiff, and that she has a right to-an accounting of the co-partnership and to payment to her of any balance that may be found due upon such accounting.

But it is claimed by the learned counsel for the defendants, inasmuch as the plaintiff received the sum of $2,415.18, which, was paid to her by the defendants after the decease of her husband, that she is estopped to claim any more, because, as is shown, she was informed that if she accepted the money it must be regarded as payment in full of her claim, and that at first she declined to accept that sum as a balance due the estate represented by her until she had consulted counsel; and that after consultation with counsel she received this sum of money.

It is not shown, however, that the plaintiff was made acquainted with any of the facts showing the actual condition of the accounts of the co-partnership. The money was not paid by the defendants as a sum of money coming to the estate on the ground that the decedent had been a co-partner with the defendants ; it was offered and paid solely as a sum of money which the defendants said was due and owing by them to the plaintiff irrespective-of any claim of co-partnership. In these circumstances the receipt of the money was not conclusive upon the plaintiff. Story’sEq. Jur., § 528.

This conclusion renders it unnecessary to consider the com- ' petency of a portion of the testimony of John Luther given at the first hearing of the case, and at a time before it was known by the plaintiff that he was a member of the firm of George H. Thompson.

The judgment appealed from should be reversed, and a new trial bad; and an issue should be framed as to the fact of the alleged co-partnership, and submitted to a jury at the Monroe circuit.

Judgment appealed from reversed, with costs to abide the event, and the fact- of co-partnership tried at the Monroe circuit, before a jury upon issues to be framed by the special term.

Dwight, P. J., and Lewis, J., concur.


author: Lewis, J.

text:
    In the Matter of the Estate of Anna H. Fargo, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Executobs and administbatobs—Payment op claim—Answeb.
    An answer to a petition for payment .of a claim which states that the claim has been the subject of dispute and discussion; that the items have been demanded so that it could be specificallyrejected; that it was founded • on the alleged fraud of deceased in the sale of property five years before, and upon information and belief denies its validity and legality, is sufficiently broad to' divest the surrogate of jurisdiction under § 3718 of the Code, especially where no objection to its form is made on the hearing.
    Appeal by John Laughlin from a decree of the surrogate’s. court of Erie county, dismissing his petition under § 2718 of the Code of Civil Procedure..

      William L. Jones, for app’lt; Devoe P. Hodson, for resp’t.
   Lewis, J.

Laughlin, on or about the 1st of June, 1891, presented his petition to the surrogate’s court of Brie county, setting ' forth that he had a claim against the estate of Mrs. Fargo,, amounting to the sum of $4,285; that he had duly presented it to George B. Webster, the executor of the estate, on the third day of February, 1891, and that the executor had neither disputed nor rejected his claim; that there is sufficient property of the estate applicable to the payment thereof, without injuriously affecting the rights of others, and asked for a citation requiring the executor to show cause why a decree should not be made; directing him to pay the claim.

Citation was issued and upon the return day thereof the executor interposed an answer stating that the executor was, on or about February 3, 1891, duly served with a copy of the claim set out in the petition, which had been in his hands ever since and had been the subject of dispute and discussion between himself, and the claimant ever since, until about the first day of June,, when he directed the claimant to make out a claim specifically in; items, so that the same might be intelligently and specifically rejected in writing; that the claimant promised to do so; that the next thing he received from the claimant was the order to show cause in these proceedings; the answer further stated that- the claim is based upon the alleged fraud of the deceased in making the sale of certain property to the claimant about five years ago, as stated in the claim; that the executor, upon his information and belief, denied absolutely the validity and legality of said claim and prayed for an order dismissing the petition.

The claim, as presented, was as follows: “ The estate of Anna. H. Fargo, deceased, to John Laughlin, Dr. To damages on fraudulent sale ‘Times printing house,’ so called, about November 15, 1886, $5,785; credit by printing, $1,500; leaving now due, $4,285, and interest from November 15, 1886.” It was duly-verified.

Upon the. answer being filed the claimant’s attorney offered to-prove that there was no rejection of the claim in any manner, nor any offer to refer, since the 3d of February, and that the executor-kept it till the first day of June without making any offer to refer.

Counsel for the executor objected on the ground that the surrogate had no jurisdiction to enter into the merits of the matter-subsequent to the filing of the answer of the executor.

The surrogate sustained the objection and dismissed the proceeding, to which ruling and decision counsel for plaintiff excepted. ^

Section 2718 of the Code provides that upon the return day of the citation if the executor files a written answer duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely or upon information and belief, the surrogate-must dismiss the petition without prejudice to an action for an accounting in behalf of the petitioner.

The answer interposed by the executor was quite informal and inartistic.

The alleged claim, it will be seen, was for damages arising out of an alleged fraudulent sale of the “ Times Printing House ” in the year 1886, about five years before the presentation of the -claim to the executor.

It was not an account nor a liquidated claim; it was obviously .•a claim that should not have been the subject of investigation in the surrogate’s court.

It Was claimed that the deceased had been guilty of a fraud. 'The executor by his answer disputed the legality of the claim.

His answer did fail to state the facts upon which he based his -doubt as to the validity of the claim, but it did state that the claim was based upon an alleged fraud by the deceased in making 'the sale of certain property, and upon information and belief, denied absolutely the legality.and validity of the claim.

The practice in the surrogate’s court is somewhat informal.

The pleadings are usually oral.

In this case in order to divest the surrogate of jurisdiction to make the decree, the Code required a written verified answer. We think it must be held that the answer was sufficiently broad to -divest the surrogate of jurisdiction to make a decree in the premises.

Ho objection was made to the form of the answer upon the hearing.

If the petitioner claimed it was-defective in that it failed to set forth the facts required by § 2718, he should have called the court’s attention to the defect.

Should the decree be reversed and the proceedings remitted to -the surrogate’s court, it would result in the answer being made more formal.

It would be improper for the surrogate to attempt to adjudicate such a claim if it was to be contested. It should be tried before -a jury.

The decree appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Theresa Bauer, Adm’rx, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Municipal corporations— Negligence—Notice—Laws 1886, chap. 572.
    Chapter 572, Laws 1886, applies to an action against a municipal corporation for personal injuries caused by negligence although the same is brought within six months from the time the cause of action accrued.
    Appeal from a judgment of the supreme court, entered in the -office of the clerk of the county of Erie on the 21st day of July, 1891, in favor of the plaintiff, and also from an order denying a motion for a new trial.

      W. F. Mackey, for app’lt; Moses Shire, for resp’t.
   Lewis, J.

This action was brought to recover damages sustained by the death of Lorenz Bauer, caused by the alleged negligence' of the defendant.

Tlie evidence tended to show that the deceased’s death was-caused by the defective condition of one of the streets of the city of Buffalo.

There was sufficient evidence to justify the jury in 'finding that the defendant’s negligence caused the injuries, and that Bauer was free from negligence contributing thereto.

The principal contention arises under chapter 572 of the Laws-of 1886, which provides that no action against a city of this state having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such city, shall be sustained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such, action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation, or other proper law-officer thereof, within six months after such cause of action shall have accrued.

The notice required by this act was not served, but the action was commenced within six months from the time it accrued.

The city charter provides that all claims against the city for wrong or injury must be presented to the common council within, six months after the wrong or injury accrued, and that no action or proceeding to enforce or recover such claim against the city shall be brought until the‘expiration of forty days after such, presentation.

This provision of the charter was complied with.

It is the contention of the plaintiff that the act of 1886 has no application to this action, as it was commenced within the six months following the death of Bauer.

This construction had been given this act, before the trial of this case at the circuit, by the general term of the common pleas-o£ Hew York in the Case of Meyer v. Mayor, &c., 12 St. Rep., 674, and also in the case of Duff v. Mayor, &c., 40 St. Rep., 230, decided by the general term of the superior court of Hew York.

According to the letter of this statute, the service of the notice-of an intention to commence the action is made a prerequisite to-its maintenance without reference to whether the action shall have been commenced within six months from the time of the accident.

One purpose of the act evidently is that the law officer shall have early information that an action is to be commenced, to the end that he may investigate the facts while they are fresh in the minds of the witnesses, and it may answer a useful purpose where the commencement of the action is delayed till near the close of the year, but where the action is commenced within the six-months the commencement of the action would seem to fully answer this purpose, for it would give the city all the information fthe notice would give.

Had the act provided for some definite adequate time to elapse between the service of the notice and the commencement of the action, that would have afforded an opportunity to settle the' claim, if desired, and thereby save the costs of the action, but-the statute fails to make such provision, the letter of the law is complied with where the commencement of the action immemediately follows the service of the notice.

The draftsman did not display much wisdom in preparing the act.

It does, however, provide that the action shall not be maintained unless the notice shall have been served.

It was held by the city court of Brooklyn in the case of Mertz v. Brooklyn, reported in 33 St. Rep., 577, where the facts were precisely like the facts here, and where this precise question was presented, that the law of 1886 applied.

The Mertz case was affirmed by the court of appeals without ■any opinion. 128 N. Y., 617; 38 St. Rep., 1014.

This question was raised. and discussed in the appellant’s brief in the court of appeals. The decision in the Mertz case is decisive •of this case, and it therefore follows that the judgment and order appealed from should be reversed and a new trial granted, with •costs to abide the event.

Dwight, P. J., and Macomber, J., concur.


text:
    Charles H. Shepard, Adm’r, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Railroad—Negligence—Failure to adopt rules.
    In the absence of proof that other companies have adopted such a rule, or that it could be practically observed by defendant in the management of its* business, it is error to submit to the jury the question whether defendant was negligent in adopting a rule requiring a signal light to be placed upon a car stored upon a track.
    Appeal from a judgment, entered on the 26th day of February, 1891, in the Ontario county clerk's office, in, favor of the plaintiff and against the defendant, for the sum of $3,527.22, and from an •order denying the defendant’s motion for a new trial.

      Henry B. Redfield, for app’lt; E. W. Gardner, for resp’t.
   Lewis, J.

This action was brought by the plaintiff, as administrator of the estate of his son, Herbert M. Shepard, deceased, to necover damages of the defendant for causing the death of Herbert, through the alleged negligence of the defendant-, on the 16th day of November, 1889, at Stanley Station, in the county of ■Ontario.

The deceased was, at the time he was killed, a brakeman in the •employ of the defendant. He arrived at Stanley Station upon a train of cars from Sodus Bay, on the night of the 16tli day of November, arriving after dark. The train was in charge of Edwin L. Mason, its conductor. After depositing the cars composing his train upon the proper switches, Mason ran down the siding known as the “I ” siding, with an engine and a combination car. Thc^ car was pushed by the engine. The deceased was standing upon the front end of the car for the purpose of giving signals to the •engineer. The car came in collision with some cars standing upon the “ I ” siding, causing the death of the deceased.

There was a rule of the company in force at the time, requiring that trains coming in on the Sodus Bay branch of the road should put their empty cars on “ E ” siding, and loaded cars on “ E ” .siding, and when the “ E ” siding was full, to put empty cars on ■“ I ” siding. The “ E ” siding had capacity for thirty-one cars •only. On the afternoon of the day in question,- Mr. Kendall, .another of defendant’s conductors, arrived at the Stanley station, with a train composed of twenty-one empty cars. There were, at the time of' his arrival, upon the “E” siding twenty cars; and there not being room upon the “ E ” siding to accommodate all •of his cars, by direction of the station agent, he placed his entire train of empty cars upon the “ I ” siding. The deceased’s train •collided with the cars thus placed on “ I ” siding. It was quite dark at the time of the accident, and Mason, the conductor of the •deceased’s train, had not been informed by any one, and did not know that the cars were upon “ I ” siding at the time. There was mo signal upon the “ I ” siding cars, in the way of lights, or otherwise.

It is contended by the plaintiff that the defendant was guilty of negligence in placing cars upon the “ I ” siding in violation of its rules, and was also negligent in failing to inform the conductor that they were there, and was also guilty of negligence in omitting to place upon the cars a light or signal to give warning of their presence on the siding.

The rules of the company provided for placing cars upon the •" I ” siding only when E ” siding was full of cars. When the train of cars placed upon the “ I ” siding arrived, there was not sufficient room upon “ E ” for all of the cars. Had a sufficient number of cars of Kendall’s train been placed upon 11E ” siding to fill it, there would have still remained ten cars which, by the rules of the company, should have been placed upon the “I” aiding; and had the car in which the deceased was riding collided with ten cars, instead of twenty-one cars, we assume that the result to him would have been the same. So that the failure of Kendall to comply with the rules of the company, by filling up ■il E ’’-siding, does not seem to be of much importance.

The respondent relies mainly upon defendant’s neglect to place lights upon the “I” siding cars 1 to sustain the judgment. His •contention is that the defendant was guilty of negligence, in that it failed to adopt a rule requiring that cars occupying tracks that were to be used, should have placed upon them in the night time some light or signal to give notice to its employees of their presence. It was shown upon the trial that the defendant had never adopted such rule or regulation. There was no evidence that any such rule had ever been adopted by any railroad company; or that such a rule would have been practicable in the handling of cars. There was evidence tending to show that the cars upon these various sidings were frequently moved and changed.

The learned trial justice charged the jury, among other things, that “ the making of suitable rules and regulations is imposed -by law upon the company, and it is a duty which it cannot escape from, any more than it can escape from the duty of furnishing safe cars for the men to ride in. Were the rules at this place for the switching of cars and the making up of trains suitable and proper? The written rules have been read to you. It is claimed by the plaintiff’s counsel that if the company was in the habit of putting its cars upon 11 ’ track, and leaving them theie on a dark night, that the rules should have required some signal to have been hung out upon the end of the car standing upon the ‘I’ track, or the conductor should have been notified in some way that cars were upon 11 ’ track. Whether it was a proper regulation not to do so, is a question of fact for you to determine. If it was ndt a proper regulation, and by reason of that omission this accident occurred, then the railroad company is liable.” The defendant’s counsel duly excepted to this part of the charge of the court, and contends that the court erred in so charging.

It is obvious that this portion of the charge of the court had an important effect upon the minds of the jurors in arriving at their verdict; and if the charge in this respect was erroneous, a new trial must be granted.

As we have seen, the case was barren of any evidence that any such rule or regulation had ever been adopted by any railroad company ; or that it was a regulation that could be practically observed by the defendant in the management of its business. Under the charge of the court, the jurors were permitted to speculate upon a subject about which they had no information, so far as the evidence in the case gave them light.

It was decided in Grippen v. New York Central Railroad Co., 40 N. Y., 41; McGrath v. N. Y. C. & H. R. R. R. Co., 63 id., 528; Houghkirk v. President, etc., D. & H. C. Co., 92 id., 220, that it is reversible error for a court to submit to a jury the question whether a railroad company should have had a flagman at a particular railroad crossing.

It was said by Judge Finch, in Houghkirk v. President, etc., supra, “ the charge left it to the jury whether the company wasr or was not, bound to have a flagman at the crossing, and whether the defendant should have had one there, and so permitted the jury to predicate the negligence upon the omission. They (the jury) must have gone to their deliberations with the final impression upon their minds that they were at liberty to find that the defendant ought to have stationed a flagman at the crossing, and that omission constituted negligence upon which a verdict could be founded. For this error we think there should should be á new trial.”

It was decided in Larow v. The N. Y., L. E. & W. R. R. Co., 40 St. Rep., 26, that it was error in the court, in its charge, tO' leave it to the jury to determine whether it was reasonable to require the railroad company to promulgate a rule forbidding entrance on a switch when another engine and train were upon it unless a signal is given or notice sent to the employes of that, train, and if they found such a rule to be reasonable, they might find the company negligent, it not being shown that any other-company had adopted such a rule, or what its practical working; would be if adopted. Hebert v. D. & H. Canal Co., 41 St. Rep., 860 . These are general term decisions and are in point.

I am unable to distinguish the doctrine of these cases from the ■question presented here. In the flagmen cases referred to, the jury were permitted to decide whether the company was not ■guilty of negligence in omitting to have a flagman at the particular station. In this case the jury was permitted to decide whether the defendant was negligent in not adopting a rule requiring a signal light to be placed upon a car stored upon a track. In the ■cases of Ford v. Lake Shore Co., 124 N. Y., 493; 36 St. Rep., 494, and Abel v. D. & H. C. Co., 103 N. Y., 581; 4 St. Rep., 269, there was evidence that rules like those contended for liad been adopted and applied by other companies.

The deceased was under age at the time he entered the defendant's employ. The plaintiff testified that the defendant asked him if he would be willing that his boy should go into the employ ■of the defendant, and that he consented; that before his son commenced work he brought to his father for his signature a paper -stating that “ in consideration of the defendant giving employment to the son that the wages might be paid to the son, and he -would make no claim upon the company therefor.” It further .stated: “And I further agree that I will make no claim upon ■said company for any injuries arising from any cause whatsoever that may be received by or happen to my said son while in the employ of the said company, either in the capacity above mentioned or in any other capacity.” The plaintiff testified that when the instrument was presented to him for his signature his son stated to him that the company wished it so that the wages might be paid to the son ; that he did not read it, and was ignoxrant of its contents when he signed it.

He, however, stated that it was presented to him by his son for his signature ; that he had ample opportunity to read it if he had ■chosen so to do before executing it. There is no suggestion in the case that he was prevented from understanding its contents -by any improper means on the part of the defendant. The defendant required his signature to the paper before it would give -employment to the son; and we think that the plaintiff must be held bound by the agreement, and that it was error to submit to the jury the question whether it was executed under such circum.stances as to bind the plaintiff. But whether the contract should be construed as including and covering any claim which the plaintiff might have against the defendant for negligently causing the death of the son may be doubted. The tenor of the decisions ■of the courts has been to give strict construction to such contracts, and not to allow their provisions to be extended too broadly. The main purpose of the contract apparently was to permit the ■defendant to pay the wages to the son as a matter of convenience; .and the clause waiving any claim for injuries' may very properly be limited so as to include only any damages which might arise In consequence of physical injuries to the son not resulting in •death. But it is not necessary to decide that question here, as -we place our decision granting a new trial solely upon the error in the charge of the court to the jury touching the adoption of the rule in reference to signal lights.

We assume that the evidence established the negligence of the defendant, and the freedom from negligence on the part of the-deceased, as the case fails to state that it contains all of the evidence.

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

Dwight, P. J., and Macomber, J., concur.


text:
    The People ex rel. Joseph Cauffman et al., Resp’ts, v. John Van Buren and Frank Hopkins, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Contempt—Injunction.
    Plaintiffs were attachment creditors and the defendants are the attorney of other creditors and the sheriff who made a levy on the debtors’ property prior to the levy of the attachment. Plaintiffs claimed that the judgments on which the executions were issued were void and brought action to-set them aside and procured from the Monroe county judge an injunction to-restrain the sale of the property. Defendant Hopkins procured from the-special surrogate of Oswego county an order éx parte purporting to set aside the injunction and purchased the property on the sale for the amount, of the judgment. Helds, that the special surrogate had no jurisdiction to-grant the order and that the facts showed a prima facie case of contempt.
    Appeal from an order of the Monroe special term, adjudging the appellants guilty of a contempt of court in violating an injunction order, and thereby defeating, impairing, impeding and prejudicing the rights of the plaintiffs in the action of Joseph Cauffman and others against Hiram Klock and others, and that, the loss to the plaintiffs thereby was $1,470.32, and fining the-defendants that amount, and directing their imprisonment until they should pay the fine.

      M. M. Waters, for app’lts ; William F. Cogswell, for resp’ts.
   Lewis, J.

The appellant Hopkins, as attorney, recovered judgments in favor of the First Mational Bank of Oswego, and in favor-of Messrs. Mertens, Dissell and others, respectively, against Hiram Klock and Edgar A. Tiffany. Klock & Tiffany were merchants-owning a stock of goods in a store in the city of Oswego, M. Y. He had as such attorney issued executions upon these judgments,, and placed them in the hands of the appellant Yan Burén, who-was sheriff of the county of Oswego, and Yan Burén had levied, the executions upon the stock of goods of Klock & Tiffany. The respondents were creditors of Klock & Tiffany to the amount of. $1,346.75, with some interest, and they commenced an action against them to recover their demand, and caused an attachment, to be issued and levied upon said stock of goods; such levy, however,. was made after the levy under said executions. The plaintiffs learning of the levy of the executions mentioned, and claiming that the judgments upon which they were issued were void, obtained an injunction order from the county judge of Monroe-county in an action in the supreme court, restraining Yan B aren,, as the sheriff of Oswego county, and the plaintiffs in the judgments upon which the executions had been issued, their attorneys,, etc., from selling, or in any manner interfering with the said stock of goods, by virtue of the executions, until the further order of the court, and staying all proceedings on the part of the plaintiffs under said judgments until the final determination of the action. Copies of the injunction order were duly served upon the appellants; they, however, proceeded in disregard of the injunction order, and caused the goods to be sold by virtue of the executions ; the sale was to Mr. Hopkins for the sum of $17,000, that being about the amount necessary to satisfy the executions. Before proceeding to sell the goods under the executions, the appellant Hopkins procured from L. W. Baker, special surrogate in and for Oswego county, upon an ex parte application therefor, an order purporting to vacate and set aside the said injunction order granted by the Monroe county judge. These proceedings were thereupon instituted to punish the appellants for disobedience of the injunction order, and the order appealed from was made, imposing a fine upon them for the full amount of the claim of the respondents, amounting with interest and costs to the sum of $1,470.32.

We agree with the conclusion of the trial justice that the special surrogate of Oswego county had no jurisdiction to make the order he did. It was the duty of the defendants to obey the inj unction order while it was in force. If, as they claim, the injunction order was improvidently granted, they should have taken proceedings and obtained an order vacating it. It is contended by the defendants’ counsel that the evidence presented to the trial court failed to establish that the plaintiffs sustained any damages in consequence of the violation by them of the injunction order, and insist that the sale under the executions did not change or affect the rights of the plaintiffs under their attachment. The plaintiffs concededly had a levy upon property of sufficient value to pay their debt. The defendants, in violation of the injunction order, sold the property by virtue of executions which had been levied upon the property prior, in point of time, to the levy of plaintiffs’ attachment. Hopkins thereby obtained a prima facie title to the property, and apparently destroyed the lien of plaintiffs’ attachment, thereby converting the attached property to his own use, in defiance of the attachments. The defendants’ contention then, and still is, that their executions were a lien upon the property superior to the plaintiffs’ attachment. Had they thought otherwise, they could, when these. contempt proceedings were commenced, at once have taken proceedings to render nugatory the sale made 'in violation of the injunction order, and thereby have purged themselves of their contempt. Instead of taking such a course, they contended at the trial, and still insist, that their proceedings were entirely regular and legal.

The plaintiffs made a prima fade case against the defendants, which justified the making of the order appealed from.

The defendants having, as we think, failed to make out a defense, the order appealed from should be affirmed, with costs.

Order appealed from affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    The People, Resp’ts, v. Jacob Dold, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Oleomargabine—Penalty—Intent.
    An intent to sell the product as butter or cheese is necessary to constitute a violation of § 8 of chap. 183, Laws 1885, prohibiting the mixture with milk, cream or butter of any animal fats or animal or vegetable oils.
    Appeal from a judgment of the supreme court entered in the clerk’s office of the county of Erie on the 2d of September, 1891, in favor of the plaintiff against the defendant for $509.75 damages and $143.12 costs.

      Adelbert Moot, for app’lt; A. C. Calkins, for resp’ts.
   Lewis, J.

This action was brought for the recovery of a penalty of $500 under §§ 8 and 19 of chapter 183 of the Laws of 1885, as amended by chapter 577 of the Laws of 1886. Section 8, so far as is necessary to the present inquiry, is as follows:

“ No person shall manufacture, mix or compound with or add to natural milk, cream or butter, any animal fats or animal or vegetable oils, nor shall he make or manufacture any oleaginous substance not produced from milk or cream, with intent to sell the same for butter or cheese made from unadulterated milk or cream, or have the same in his possession, or offer the same for sale with such intent, nor shall any article or substance or compound so made or produced be sold intentionally or otherwise as and for butter, cheese or the product of the dairy.”

Then follows a clause prohibiting the using of coloring matter in the manufacture of butterine or oleomargarine. This section makes a violation of its provisions a misdemeanor, to be punished by a fine of not less than $100 nor more than $1,000. Section 19 provides a penalty of $500 for the violation of the provisions of § 8, to be recovered, with costs, in any court of the state having jurisdiction thereof in a case to be prosecuted by the dairy commissioner in the name of the People of the state. The complaint, in one and the same count, charges that the defendant violated § 8, in that he did manufacture, mix and compound with, and add to natural milk, cream and butter, certain animal fats and animal and vegetable oils, and did make and manufacture a certain oleaginous substance not produced from milk and cream, with intent to sell the same for butter made from unadulterated milk or cream, and did have the same in his possession and offered the same for sale with such intent.

' Then follows a clause charging that he had in his possession butterine or oleomargarine which was colored with annatto or other coloring matter. The evidence tended to show that the defendant did manufacture butterine or oleomargarine by mixing animal fats and animal and vegetable oils with natural milk, cream and butter, but failed to show that he did so with the intent to sell the same for butter made from unadulterated milk or cream. There was no evidence which would warrant a verdict against Mr. Bold on the theory that he made this oleomargarine or butterine, or offered it for sale or intended to sell it as an article made from unadulterated milk or cream.

The court charged the jury that if they found from the evidence that the defendant did manufacture, mix or compound with or add to natural milk, cream or butter, any animal fats or animal or vegetable oils, he was liable for the penalty. The defendant’s counsel excepted to this part of the charge because it left out of view the intent to sell the same for butter or cheese, and thereupon requested the court to charge the jury that unless they found that the defendant mixed or compounded natural milk, cream or butter with animal fats or animal or vegetable oils or oleaginous substances not produced from milk or cream, with the intent to sell the same for butter or cheese, they cannot find in favor of the plaintiff so far as this part of the case is concerned.

The court declined so to charge and the defendant duly excepted. The question is therefore distinctly and clearly presented, did the defendant incur the penalty by mixing these substances as stated without any intention of selling the product for butter, but intending to sell it for just what it was, oleomargarine or butterine. The undisputed evidence was that in the manufacture of oleomargarine or butterine the use of milk or cream is indispensable. Without the use'of milk or cream the compound would not be oleomargarine or butterine.

In the case of the People v. Marx, 99 N. Y., 377, the defendant was convicted of the violation of the sixth section of chapter 202 of the Laws of 1884, which provides that,

“Ho person shall manufacture out of oleaginous substances, or any compound of the same, other than produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk or cream of the same, or shall sell or offer for sale the same as an article of food.”

John Bapallo in his opinion says : It appears to us quite clear that the object and effect of the enactment under consideration were not to supplement existing provisions against fraud and deception by means of imitations of dairy butter, but to take a further and bolder step by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published" to drive the substituted article from the market, and protect those engaged in the manufacture of dairy products against the competition of cheaper substances capable of being applied to the same uses as articles of food.”

The act so far as it attempted to accomplish that, was held to be void as violative of the provisions of the constitution securing freedom to all persons to follow any lawful pursuit not injurious to the community.

After the argument of that case in the court of appeals, but before the decision was announced, chapter 183 of the Laws of 1885 was passed, containing the section under review. The amendment of 1886 does not affect the question before us. If the construction given to this section by the trial court, that the mixing of animal fat or oils with milk or cream, is prohibited without reference to an intent to sell the product for butter, be correct, then it seems to logically follow that the legislature has by this act accomplished the very thing which the court of appeals held in People v. Marks, supra, could not be done by act of the legislature. The act of 1884 sought to prohibit the manufacture or sale of oleomargarine as a substitute for butter, and was held to be void. The act of 1885 prohibits its manufacture for any purpose, unless § 8 permits it to be manufactured if the manufacturer intends to sell it for just what it is.

In the case of the People v. Arensberg, reported in 105 N. Y., 123; 6 St. Rep., 789, being an appeal from a judgment of conviction of the defendant for violating the same act, Judge Rapado says:

“ The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities inherent in the articles themselves, and common to both.”

While it appears from the record that the use of cream or milk does impart to the compound a butter taste, and in a slight degree gives the substance the yellow hue of genuine butter, but as suggested, if the cream or milk be not used, the product is not oleomargarine, and would not answer the purpose for which it is manufactured, to wit, a cheap substitute for butter, it was concededly within the power of the legislature to prohibit the mixing of the ingredients mentioned in the section with the intent to sell the product as or for butter. But as it was not within the province of the legislature to prohibit its manufacture altogether, it must be held, to give it any force or effect, that the clause “ with intent to sell the same for butter applies to that part of the section prohibiting the mixing of the animal or vegetable oils or animal fats with natural milk, cream or butter.

It follows that it was error in the court to charge that the intent to sell was not necessary to constitute a violation of that part of the section. The complaint, as we have seen, also charged the defendant with having in his possession oleomargarine colored with annatto or other coloring matter, and there was evidence tending to sustain this allegation of the complaint; yet as the court submitted to the jury the question whether the defendant was guilty of violating the provisions of the section first referred to, as well as the question of the use of coloring matter, we cannot know whether the jury found against the defendant for mixing the compound or for using coloring matter.

Because of the error in the charge of the court, that the intent to sell was not necessary to constitute a violation of the section, a new trial should be granted, with costs to abide the event.

Dwight, P. J., and Maoomber, J., concur.


author: Per Curiam.

text:
    Joseph W. Fiske, Resp’t, v. John Rogers et al., App’lts, et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    New Tobe City—Lien on contract—Notice.
    A notice of lien under § 1825 of chap. 410, Laws 1882, which states that the amount claimed is due from the contractor with the city under a contract made by him through his agent, when in fact the alleged agent was a subcontractor with whom the contract was made, is_ not in compliance with the statute, and cannot be the foundation of a lien.
    Appeal from judgment entered upon report of referee.

      Dudley E. Horton, for app’lts; S. D. Sewards, Albert■ H. Atterbury, John Broojcs Leavitt and L. Laflin Kellogg, for resp’ts.
   Per Curiam.

The action was to determine the right of the

parties, under notices of lien, to money due under a contract made with the city.

As to most of the lienors there is a fundamental consideration which will dispose of the appeal as to them. It was found below that the notices of lien filed by them were valid. Section 1825 of chap. 410, Laws of 1882, vol. 2. That section requires that a notice shall state the amount of the claim and from whom due. Whereas the notices now in view stated in legal effect that the amount claimed was due by Rogers, the contractor with the city, under a contract made by Rogers through' his agent, one Fortunato. The referee found that this was not in accordance with the facts, which were that Fortunato was not agent of Rogers and the contracts were made with Fortunato, who was a sub-contractor of Rogers. The notices were therefore not within the statute, and were not the foundations of liens. The judgment that was in favor of the plaintiff and the defendants, Smith, Bran-dell and Curtis & Blaisdell, should be reversed and a new trial ordered, with a single bill of costs to abide the event.

The notice of lien filed by defendants Eitch was objected to on the ground that the contract made with defendant Eogers was in reality made with a firm to which the defendants Eitch had succeeded, but the notice stated that it was made with the defendant. This matter was not open for litigation. The appellants in this answer “ affirmatively allege that they entered into a contract with said defendants Eitch to furnish stone as alleged in this complaint.” The objection to the notice should not be sustained. 1

The facts connected with the claim of the Ritchs cannot be examined because it does not appear that all the evidence is in the case that was settled.

The judgment as to the respondents Eitch should be affirmed, with costs.

No ground has been claimed for reversing the judgment in .favor of Russo. It is therefore affirmed, with costs.

Sedgwick, Oh. J., Dugro and Gtldersleeve, JJ., concur. ’


author: Dugro, J.

text:
    James Nunan, Resp’t, v. Andrew T. Doyle, App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Mechanics’ Lien—Performance. ■
    It is no defense to an action to foreclose a mechanics’ lien, that there was not full performance of the contract; substantial performance is sufficient.
    Appeal from judgment in favor of plaintiff.

      Charles J. Hardy, for app’lt; William Stone, for resp’t.
   Dugro, J.

This is an appeal from a judgment in favor of the plaintiff.

The action was brought to foreclose a mechanics’ lien. The amount claimed to be due was $1,614, and was for a balance upon a contract of $14,680, and for extra work The recovery was for $1,063.60. The appellant claims that the lien was invalid, and seems to rely greatly upon a finding of fact, which is in effect that the work covered by the contracts was not yet completed at the time of the trial. That a substantial completion was not referred to in this finding is evidenced by the fourth finding, which reads, “That before the 14th day of'July, 1890, plaintiff had substantially completed the plastering work required to be done. * * * ” The case shows that the referee found that plaintiff had substantially performed the contract and work for which he filed the lien. Allowance was made for the lack of full performance.

Hollister v. Mott, 32 St. Rep., 743, is satisfactory authority that a recovery ought not to be defeated upon the ground that there was not full performance by the plaintiff; substantial performance will suffice. I have examined the exceptions which appear in the case, and find no error which warrants a reversal.

The judgment should be affirmed, with costs and disbursements.

Sedgwick, Oh. J., and Gtldersleeve, J., concur.


author: Gildersleeve, J.

text:
    Mary Eliza Rowland, App’lt, v. Charles Miller et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Ejectment—Description—Demurrer.
    The description of the premises in controversy in a complaint in ejectment was as follows : “ Commencing at a point in the easterly line of said premises, three and one-eightli inches southerly froin the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.” Held, that this was the description of nothing but a straight line ; that there was nothing to make more definite and certain, and that a demurrer was proper.
    Appeal from an order of the special term, sustaining a demurrer, and from the judgment entered thereon.

      Lockwood & Hill, for app’lt; Burrill, Zabriskie & Burrill, for resp’ts.
   Gildersleeve, J.

This is an action for ejectment. The description of the property in suit is set forth in the complaint as follows: “ Commencing at a point in the easterly Jine of said premises, three and one-eighth inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.”

This is a description of a straight line, and nothing else.

Section 1511 of the Code of Civil Procedure provides that “the complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.”

As it is impossible to deliver possession of a straight line, the complaint clearly does not set forth facts sufficient to constitute a cause of action; and, therefore, the demurrer must be sustained. Code, § 488.

The complaint does not describe any property at all; and there is, therefore, nothing of which a bill of particulars can be given and nothing to be made more definite and certain by .motion, under § 546 of the Code; it consequently follows that defendants’ proper course was to demur. See Budd v. Bingham, 18 Barb., 494.

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

Sedgwick, Ch. J., and Dcjgro, J., concur.


text:
    Gretchen Seebach, Individually and as Ex’rx, et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Railroad—Elevated—Damages.
    The fee damage to be paid by an elevated railroad to avoid an injunction may include damages to be caused in the future by the passage of trains, such as dirt, cinders, steam, smoke and odors.
    Appeal by the defendants from judgment entered upon the report of a referee.

      Joseph B. Lord, for app’lts; Charles Gibson Bennett, for resp’ts.
   Per Curiam.

This is an action for an injunction against the defendants maintaining and operating their elevated railroad in front of the premises of plaintiff.

The referee refused to find, at the request of defendants’ attorney, that the sum fixed, if any, to be paid as an alternative for avoiding the injunction shall not include damages to be caused in the future bv the running of trains, i. e., include the damages to be caused in the future by noise, dirt, cinders, steam, smoke and odors incidental to the operation of the trains in the future. The learned referee was correct in his action. The running of trains in the future would be a taking of plaintiffs’ 'easement. As to the damages to be caused in the future, the request was at least partly invalid. For conceding that the effect of noise would not be a lessening of the easement, certain of the other particulars would be. “ Smoke and gas, ashes and cinders affect and impair the easement of air. The structure itself and the passage of cars lessen the easement of light, etc., etc." Drucker case, 106 N. Y., 157; 8 St. Rep., 599; Am. Bank Note Co. v. N. Y. Elevated R. Co., 41 St. Rep., 531. The referee did not include the effect of noise in his estimation of the value of plaintiffs’ easement.

Judgment affirmed, with costs.

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


text:
    Eliza L. Hirschberger, Resp’t, v. The Manhattan Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Appeal by defendants from judgment entered upon the decision of a judge at special term.

      Joseph E. Lord, for app’lts; Charles A. B. Pratt, Jr., for resp’t.
   Per Curiam.

The questions raised by the appellants in this case are the same that have been decided, unfavorably to them, in Seebach v. The Metropolitan Elevated R. Co. argued this term.

Judgment affirmed, with costs.

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


text:
    Alexandrina Jordan, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Railroad—Elevated—Damages—Passage of trains.
    In fixing the fee damage caused by the erection and maintenance of an elevated road, the court may consider the future passage of trains and the incidental injuries thereby -occasioned to plaintiff’s easements, such as dust, cinders, steam, smoke or odors.

      (Sperb v. Metropolitan FI. B. Co., 41 St. Rep., 155, disapproved.)
    Appeal from judgment in favor of plaintiff.

      Sackett & Bennett, for resp’t; Davies a; Rapallo, for app’lts.
   Dugro, J.

This is an appeal from a judgment in favor of the. plaintiff for past damages, and an injunction with alternative relief.

Assuming the appellants’ point to be in the case, the main question in this appeal is presented by his claim that an error was committed by the learned trial judge in including as a part of the subjects to be compensated for by the amount which was" fixed as the fee damage the future passage of the trains, with the dust, cinders, steam, smoke or odors incidental to the operation of trains in the future upon the structure of the defendants.

The appellants’ contention is, in substance, that the injury to plaintiff’s easement of light, air and access in the street adjacent to her lot for which she can recover, is merely that done by the existence of the structure in the street, as distinguished from that incident to this existence and the running of trains, with the incidental injuries thereby occasioned to the easements referred to. ■

In support of their contention they rely mainly upon the case of Sperb v. The Metropolitan Elevated Railway Co., 41 St. Rep., 155.

This case is recent and supports their position. It seems, how•ever, in conflict with the following cases : Story v. The New York Elevated Railroad Co., 90 N. Y., 122; Drucker v. The Manhattan Elevated Railway Co. et al., 106 id., 157; 8 St. Rep., 599; American Bank Note Co. v. The N. Y. Elevated Railroad Co. et al., 41 id., 531; Messenger v. The Manhattan Railway Co. et al., 42 id., 96. With, '.the first, wherein it holds that “ the street occupies the surface .and to its uses the rights of the adjacent lots are subordinate, but .above the surface there can be no lawful obstruction to the access of light and air to the detriment of the abutting owner.”

With the second, wherein it holds that “ smoke, gases, ashes, cinders affect and impair the easement of air,” and proclaims these as elements of damage, even though the necessary concomitants of the construction and operation of the road and roads; “ there remains but the annoyance of noise and vibration of the buildings * * * but no objection or exception selected these out as improper elements in proof of damage, and the question which might involve the difference of opinion among us is not here presented.” ‘The difference referred to I take to be that later found in American Bank Note Co. v. The N. Y Elevated R. R. Co. et al., 41 St. Rep., 531, where it was held that “the noise of operation should not be taken into account as an element of fee damage ”

With the third : because the question here presented was there not passed upon in the appellants’ favor, although presented upon '■the hearing of the appeal in the court of appeals, and because the Sperb case and nearly all of those now upon appellants’ brief were upon the brief and supplemental brief presented to the •court of appeals by the present defendants, then the appellants.

With the Messenger case, wherein it, adverting to evidence of noise, reads : “ It does not appear that this evidence was received as bearing upon the fee damage * * *. According to our decision in the case last cited, it was not competent in relation to the fee damage. In estimating that, evidence must be confined to what the railroad company is authorized to take, or interfere with, to wit: the easements of light, air and access.”

Subtle refinement may possibly discover the Sperb case as in. harmony with the cases referred to. If so, the defendants are right in their position upon the question presented; for the Sperb case has the merit of being explicit.

Some provision should have been made for the protection of the defendants against such right as the mortgagee may have in •■the premises.

As no other error appears in the case the judgment should be modified by inserting therein between the words, taken by the defendants,” and, “ and providing further that the defendants at .any time,” the following: and "also such a release for the purposes of execution by the mortgagee, Frederick Van Keuren, as will relieve from his mortgage lien the said easements,” and conforming in other respects the judgment thereto.

If the respondent so desires, the judgment will be further modified by the insertion of'appropriate provisions in case she should-be unable to obtain the release.

Modified as stated, the judgment is affirmed, without costs.

Sedgwick, Oh. J., and Gtldersleeve, J., concur.


text:
    Sophia Frank, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts. Barbara Fahrbach, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts. Charles Ludovici, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts. Isaac Lubin, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Appeals from judgments in favor of plaintiffs.

      Backed & Bennett, for resp’ts; Davies & Rapallo, for app’lts.
   Dugro, J.

That there should be affirmance in these cases follows from Jordan v. The Metropolitan Railway Co., decided at this term.

No errors requiring reversal appear in the admission of the evidence objected to in the Lubin and the Ludovici cases.

Judgments affirmed, with costs.

Sedgwick, Ch. J., and Gtldebsleeve, J., concur.


text:
    Julia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Railroad—Elevated—Damages—Evidence.
    In an action against an elevated railroad, witnesses who have shown their acquaintance with the rents in the vicinity of plaintiffs property, and their competency to testify in relation thereto, may he allowed to testify “Is to the course of rents in general in the neighborhood of the premises in question since the erection of the railroad, and for a few years previous thereto.” Such testimony is not opinion evidence, hut a grouping of facts too numerous to require statement in detail.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      Olin, Rives & Montgomery (George L. Rives, of counsel), for resp’t; Davies & Rapallo (Herbert Barry, of counsel), for app’lts;
   Gildersleeve, J.

The judgment enjoins the defendants from operating their elevated railway in front of the premises Nos. 76- and 78 West Broadway in the city of New York, but permits the defendants to pay to plaintiff the sum of $4,000, with interest from the date of the report, in avoidance of the injunction; and also awards to plaintiff the sum of $366.66, past damages, together with costs and allowance.

A- careful examination and analysis of the evidence satisfy us that the damages for loss of rent and the allowance in avoidance of the injunction are fully warranted. The evidence shows substantial injury, and the awards are not excessive.

The alleged error, which is urged by the appellants as the principal ground of reversal, arose upon the' admission by the learned referee, under the objections and exceptions of the defendants, of testimony as to “ the course of rents in general on West Broadway, in the neighborhood of the premises in question, since the erection of the elevated railro.ad and for a few years previous thereto.”

This inquiry was addressed to certain witnesses called by the plaintiff, who had previously fully stated their experience and opportunities of observation as to rents of real estate in the vicinity of plaintiff’s property, and had given facts in regard to numerous specific pieces of property as to which they had personal knowledge. They had also given their opinions generally as to past and present values of this and adjacent property. We think the character of the inquiry on the subject of rent and also of fee values, in the questions challenged by defendants, was proper. The questions called for a statement of fact from witnesses who had shown themselves competent to testify in respect of the subject matter under investigation. It was not strictly opinion evidence. It was a grouping of facts too numerous to require statement in detail.

We find no substantial error in the rulings of the referee.

The judgment must be affirmed, with costs.

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


text:
    Morgan L. Livingston and Sylvia Livingston, Resp’ts, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Appeal from a judgment in favor of plaintiffs, entered on the report of a referee.

      Olin, Rives & Montgomery (Q-eorge L. Rives, of counsel), for resp’ts; Davies & Rapalb (.Herbert Barry, of counsel), for app’lts.
   Gildersleeve, J.

The judgment permits the defendants to pay to plaintiffs the sum of $4,000, with interest from the date- of the report, in avoidance of the .injunction restraining defendants from maintaining and operating their elevated railroad in front of premises No. 72 and 74 West Broadway, in the city of New York; and it awards to plaintiffs the sum of $269.33, as damages, together with costs and allowance.

The property involved in this case adjoins the premises which are the subject matter of the case of Julia Livingston against these defendants, affirmed at this general term; and the two cases rest upon the same evidence and present precisely the same-questions.

For the reasons stated in the opinion in the said case of Julia. Livingston against these defendants, the judgment herein is-affirmed, with costs.

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


text:
    Sylvia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Appeal from a judgment in favor of plaintiff, entered on the-report of a referee.

      Olin, Rives & Montgomery (George L. Rives, of counsel), for resp’t; Davies & Rapallo (Herbert Barry, of counsel), for app’lts.
   Gildersleeve, J.

The judgment permits the defendants to-pay to plaintiff the sum of $3,250, with interest thereon from the-date of the report, in avoidance of the injunction restraining defendants from operating and maintaining their elevated railroad in front of premises No. 80 and 82 West Broadway, in the city of New York ; and it awards to the plaintiff the sum of $168.33, as-past damages, together with costs and allowance.

The property involved in this case adjoins the premises which form the subject-matter of the case of Julia Livingston against, these defendants, affirmed at this general term; and these two-cases rest upon the same evidence and present precisely the same questions.

For the reasons stated in the opinion in the said case of Julia Livingston against these defendants,the judgment herein is affirmed, with costs.

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


text:
    James Saxton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    "Raileoad—Elevated—Evidence.
    In an action against an elevated railroad, evidence of objections of plaintiffs tenants to their rooms on account of dirt and noise from the-elevated road, not connected with their leaving their apartments or as a reason for not taking them, is inadmissible as hearsay.
    Appeal by defendant from judgment entered upon findings, and by judge at special term.

      Arthur 0. Townsend, for app’lts; TS. W. Tyler, for resp’t
   Per Curiam.

This is the usual action against the defendants-to enjoin them from maintaining and operating their elevated road, in front of plaintiff’s premises.

On the trial a witness was called who was the janitor of the-building in question. He testified to a reduction of rent through a- course of years. The counsel for plaintiff then asked what daring these years have the tenants stated as the ground of their objection to their Third avenue rooms, and if so have they given substantially the same objection or a variety of objections. The answer, was there is one objection; they made objection referring, to different objects; different things in connection with the elevated road; all the objections refer to the elevated. The objection was-to dirt and noise from the elevated road; they cannot open the-windows because if they do, they get the dirt in their rooms, in the best part of the house in front.

The question that called out this testimony was validly excepted to on the ground that the declaration, of the tenants were hearsay. The declarations did not accompany the tenants leaving apartments and were not the statement of reasons for not taking them. In either of such cases, there might be room to argue that, the declaration was part of a transaction. They were but isolated utterances of different individuals, not under oath or subject to-cross-examination.

There are some questions in this case which perhaps are like-those on the same subject considered in the JBohm and Somers cases. These cases had not been decided at the time of the trial here. It is not necessary to pass upon the question now, as the new trial will be had .under the cases in the court of appeals.

Judgment reversed and new trial ordered, with costs to abide-the event.

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