author: Daotels, J.

text:
    THOMAS P. SOMERVILLE, Appellant, v. ABEL CROOK and GUSTAV BERGGOIST, Administrators, etc., of CHARLES J. PETERSON, Deceased, Respondents.

      Practice — Report of ref wee upon disputed claim against deceased person — how reviewed — personal transaction with deceased — Oode, § 899 — objection as to evidence of — what sufficient.

    Where a party desires to review the report of a referee, made upon the reference of a disputed claim presented against the estate of a deceased person, he should move upon a case and exceptions for a new trial and to set aside the report, and if this application be denied an appeal should be taken from the judgment entered upon the report.
    In an action to recover for legal services, rendered to the defendant’s intestate by the plaintiff, the latter was allowed, against the defendant’s objections and exceptions, to state that the services consisted of counsel and advice given by him to the deceased in relation to several matters, and that during a specified time he considered himself the counsel of the deceased. Held, that the evidence was inadmissible, as relating to personal transactions or communications with the deceased.
    Where it appears from the referee’s minutes that certain evidence was objected to by the defendant, the terms used being “objected to by defendant,” held, that the objection was insufficient to raise the point that it was inadmissible under section 899 of the Code.
    Appeal from an order denying a motion made by the plaintiff to confirm the report of a referee, and directing that the claim be dismissed, and from a judgment in favor of the defendant, entered in pursuance of the said order.
    This was a reference under the statute, of a claim of Thomas P. Somerville against the estate of Charles J. Peterson, deceased, for professional services alleged to have been rendered to deceased as his attorney and counsel.
    The administrators having rejected the claim, it was by' agreement referred. The referee reported in favor of plaintiff in the sum of $322.75.
    Plaintiff moved at Special Term to confirm said report, and for costs and allowance, which motion was denied and an order made dismissing the claim and for judgment -in favor of defendants for costs.

      This decision was based upon the objections and exceptions taken by defendants, to the admission by the referee of certain questions put to plaintiff.
    Judgment having been entered dismissing the claim and in favor of the defendant for costs, this appeal was taken from the order and the said judgment.

      Sidney H. Stewart, Jr., for the appellant.

      Meyer Butzel, for the respondents.
   Daotels, J.

The plaintiff made a claim against the estate of Charles J. Peterson, deceased, of which the defendants were administrators. Its justice was doubted by them, and a reference made of it to a referee, pursuant to the statute existing upon that subject. (3 R. S. [5th ed.], 175, § 41, as amended by chap. 261, Laws of 1859, § 2.) The referee reported in plaintiff’s favor, but upon a motion made for its confirmation, the application was denied and the proceedings dismissed, with costs. After judgment was entered, con-formably to that direction, an appeal was taken from it, as well as from the order directing it.

From the return made to the appeal it appears that the evidence taken upon the hearing before the referee, was returned by him and presented to and considered by the court, on the hearing of the motion to confirm the report, and that seems to have been denied and the proceedings dismissed, because of certain rulings deemed to be erroneous, concerning the admission of evidence offered during the trial. The proceeding was plainly irregular. The report was complete upon its face, and that was sufficient to require its formal confirmation. Then the remedy of the plaintiff for the correction of the errors alleged to have arisen upon the trial, was to make a case, as the foundation of an application to set aside the report. The proceedings prescribed by the statute were to be suchas would be proper in an action against an executor. (3 R. S. [5th ed.], 175, § 42.)

And according to the practice then in existence in such an action as that, the successful party was entitled, of course, to a confirmation of the report, while the defeated party at the same time was entitled to apply for a new trial, either for errors of law or fact, upon a motion, supported by a proper case, made for that purpose. And that was the course which has received the sanction of the authorities upon the reference of disputed claims made against the estates of deceased persons. (Boyd v. Bigelow, 14 How., 511; Radley v. Fisher, 24 id., 404; Godding v. Porter, 17 Abb., 374; Coe v. Coe, 14 id., 86.)

In Boyd v. Bigelow (supra), it was held that the motion' to set aside the report and for a new trial, should be first made upon a case at the Special Term, and that was again affirmed in Radley v. Fisher (supra); and the opinion of Mr. Justice AlluN seemed to favor that practice, in deciding Coe v. Coe (supra). That point does not seem to have been considered by the General Term. It held that an appeal could be taken from the judgment recovered to the General Term, but whether before or after a motion at the Special Term was not discussed. In Strong v. Dean (55 Barb., 343), an appeal to the General Term was taken from such a judgment, but what was the proper practice to be observed before the entry of judgment, was not considered.

The authority, so far as it exists upon the subject, sanctions a motion at Special Term upon a case, before judgment, to set aside the report. And then an appeal from the judgment entered after-wards by the party defeated upon that application. The propriety of this course is sustained by the circumstance that a reference of a claim against the estate of a deceased person is a special proceeding, and it was the object of the Code of Procedure to provide an entirely new system of practice, only" in civil actions. (§§ 2, 3, 8.)

That left special proceedings as they had been provided for at the time when the Code was enacted, and subject to the further regulation of them since prescribed by other statutes. By one of these statutes an appeal has been provided; but that seems to sanction the practice already considered as applicable to this class of references, for it has provided that the appeal which may be taken in a special proceeding shall be from any judgment, order or final determination made at a Special Term, and not otherwise. (Laws of 1854, 592, chap. 270, § 1.) And that seems to be a further authority in favor of the necessity of the motion at Special Term to set aside tbe report, before an appeal can be taken from tbe judgment to tbe General Term.

To have rendered tbe application regular which was made in this proceeding, there should have been a case made and settled according to the rules of practice governing actions against executors But no objection seems to have been made to the hearing and decision of the application, either for want of a case or because it was not brought on at the right time, or after the formal confirmation of the report of the referee. And for that reason, it possibly might be deemed to have been waived by the act of the parties, if, under the circumstances, that would be just to the defendants. But as the practice seems to have been mutually misapprehended, and a formal case is as important for the review of proceedings of this nature as of those in an action, that ought not to be held to be the result of the conduct of the parties in this instance.

The claim made and referred was for legal services performed for the intestate. The claimant is an attorney and counselor of this court, and rendered . his services in that capacity. He was sworn and examined as a witness, in his own behalf, upon the trial, and during his examination, he was asked whether he acted “ as attorney and counsel in any matters or proceedings with which the deceased was connected or interested.” This was objected to by the defendants; hut it was allowed, and they excepted. He was also, after he had answered that he did, asked when, and what he did. The same objection was taken to each of these questions, but they were allowed to be answered, and the defendants in like manner excepted. The witness first stated services of a not very important nature, which he had performed for the deceased, and then added, that “ the rest of the services were counsel and advice to deceased in relation to the same matters, and also in relation to loss sustained by failure of Third Avenue Savings Bank, and also of Duncan, Sherman & Go. I had the general charge of his business during the time I have mentioned, and considered myself as his counsel up to the time of his death.” A portion of this evidence certainly disclosed a personal transaction, or communication between the witness and the deceased. That was clearly true as to, the advice given; and the witness was incompetent to prove it under section 399 of the Code.

After that evidence had been given by him, he was asked: “ What was the value of those services ? ” And to that the same objection was taken; but it was allowed to be answered by the referee, and the defendants again excepted. The witness then said : “ I think they were very reasonably worth $1,250.” That answer, of course, included the counsel and advice mentioned in preceding evidence of the witness and the services performed in the general charge of the business of the deceased. To that extent this witness was not competent to give evidence, because of the decease of the other party to the communication or transaction. In that state of the affair the law has declared that the surviving party shall not be examined as a witness, in regard to any personal transaction or communication between himself and the deceased. (Code, § 399.) And the. answer of the witness violated this prohibition, for it related to the value of his services performed personally with the intestate. As to that it was the intent of this provision that the evidence of the survivor should be excluded; and it ought to have been done by the referee. The objection, as it was taken down by the referee, did not specifically mention this as a reason why the evidence was resisted as improper, but it was noted in the most general form. The terms used are: objected to by the defendants ; ” which were insufficient to raise the point that was relied upon to oppose the motion for the confirmation of the report. And it was held to be so in the case of Levin v. Russell (42 N. Y., 251). For that reason, if the minutes are full and complete upon this point, the defendants have not placed themselves in a position allowing them to take advantage of the admission of this evidence as improper, and a further hearing of the case will be of no service to them. But that may be shown to have been insufficiently noted in the minutes by the settlement of a case; and the defendants should still have an opportunity to present it, if that can be done in a more favorable form, by way of an application upon a case to set aside the referee’s report. The judgment should, therefore, be reversed, without costs of the appeal; and an order should be entered formally confirming the referee’s report, with liberty to the defendants within ten days to make and file exceptions to such report and to serve a case, upon which an application can properly be made to set aside such report.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ

Judgment reversed, without costs; order entered formally confirming referee’s report, with liberty to defendants, within ten days, to make and file exceptions to report and serve a case upon which application can properly be made to set aside report.


source: Caselaw Access Project

author: DANIELS, J.:

license: Public Domain

text:
    JASON WEEKS, Plaintiff, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Defendant.

      Baikoay company — duty of, to protect passengers — laggage.

    Upon the arrival of one of defendant’s trains at New York, the. car in which plaintiff was a passenger was detached from the others and allowed to remain unguarded, while awaiting the arrival of horses by which it was to be drawn to the station. The plaintiff got up and went toward the door to ascertain the cause of the stoppage, when he was seized by three men who had just entered the car and robbed of securities of the value of over $16,000. In an action by him to recover the amount thereof from the company, held, that he was not entitled to recover.
    The baggage for which a railroad company is responsible, includes only such articles as might become necessary, convenient or ornamental during the course of the passenger’s journey, with such reasonable amount of money as would be required to meet his actual and contingent expenses.
    A railroad company is not responsible for baggage never delivered, to it, but retained by the passenger in his own possession and custody.
    Motion by the defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.

      Cabin Q. Child, for the defendant.

      Luther B. Ma/rsh, for the plaintiff.
   DANIELS, J.:

Tbe verdict in this case was for the sum of $16,685.47, which was the value, with interest, of certain bonds stolen from the person of the plaintiff while he was a passenger on one of the defendant’s cars. The train, of which it was a part, had arrived near Twenty-seventh street, on Fourth avenue, in the city of New York. It had been there detached for the purpose of being taken a short distance by horses to the depot of the defendant. While it was awaiting the arrival of the horses, three men from the street went upon the forward part of the car, two of them being inside and the other remaining on the platform. The plaintiff was seated near the center of the car and went to the forward end to discover the cause of the detention. When he approached the two men his arms were seized by one who backed him toward the door, near which another was standing, who also seized hold of him, and with the assistance of the third, who then rushed in, he was robbed of his bonds. No person employed by the company was in the car at the time, and no precautionary measures had been taken by it to protect its passengers against pillage Another robbery was shown to have taken place near the same vicinity, but whether it was before or after this one did not appear. Upon these facts the court ruled that the plaintiff was entitled to recover the value of the bonds taken from him, except one which was overdue and was afterward i’eturned; and the only point pi’esented by this case is, whether that ruling was correct.

It appeared that the plaintiff earned the bonds in an inside pocket, and that he gave no notice to the defendant or any of its agents of the fact that he had them. They were in no way placed under the charge of the defendant, but they were solely and wholly retained by the plaintiff. He made no contract with the company other than that to be deduced from his purchase of an ordinary passenger ticket, and paid nothing for the safe carriage of the bonds in his possession unless it was included in the purchase-price of his ticket.

The contract included in that purchase undoubtedly bound the company to carry him safely and protect his person against injury, so far as that could be accomplished by the observance of the utmost degree of care and skill applicable to the business in which it was engaged. The obligation was likewise imposed upon it of safely and securely carrying and delivering his baggage, so far as that might be intrusted to its care, and the only exceptions to its obligation for losses in that respect, were those which might result from public enemies and the act of God. But while this obligation was of so stringent a nature, it included, in a case like the present one, only such articles as could be appropriately denominated the baggage of the passenger. That extended to such things as might become necessary, convenient or ornamental, during the course of the journey, with such a reasonable sum of money as would be required to meet its actual and contingent expenses. Articles of merchandise, or samples of them, and large .amounts of money are not, on the mere passenger’s ticket, carried at the risk of the carrier. (Jordan v. Fall River R. R. Co., 5 Cush., 69, and cases referred to in the opinion; Merrill v. Grinned, 30 N. Y., 594; Dexter v. Syracuse and Binghamton R. R. Co., 42 id., 326; Dunlap v. Int. Steamboat Co., 98 Mass., 371; Dibble v. Brown, 12 Georgia, 217.) The bonds which .were taken from the plaintiff were not within the reason, and consequently not within the protection of the rule defining the degree of this responsibility.

Even if they had been delivered as a part of his baggage to the agents of the company, it would not have been liable for their loss, as a part of such baggage, without notice of the fact that it included them, or a special agreement was made including the risk of their safety. Merely delivering them to the company as part of the passenger’s baggage would not, under the ordinary obligations arising out of the sale of a passage ticket, render it liable for their safety; and as the carrier could not be made liable for the loss of such property carried in that manner, it would seem to follow that the same result should be sustained where it remained about the passenger’s person, and in no way committed to the custody of the carrier. In that case, the property is retained in the charge of the passenger himself, and as the carrier has no means by which it can secure its safety, it should not be liable for the loss of it, if that should happen to occur. For that reason, the carrier was held not to be liable for the loss of an overcoat not delivered to its agents, but retained by the passenger, in the case of Tower v. Utica and Schenectady Railroad Company (7 Hill, 47), and in Grosvenor v. New York Central Railroad Company (39 N. Y., 34), tbe general principle was approved, rendering it necessary to support tbe liability of the carrier, that the property lost should be placed in its custody. For that reason, chiefly, the passenger was prevented from recovering the value of the contents of his portmanteau, which he had taken into his apartment with him, and carelessly left there during the period of a temporary absence. (Great Western Railway Co. v. Talley, 23 L. T. R., 413.) And in The First National Bank v. Railroad Company (20 Ohio, 259) it was held to preclude a recovery for money carried upon the person of a passenger, and destroyed by means of an accident to the train in the course of the journey. It was there said that the passenger could not reasonably have supposed that the defendant, by selling him a ticket and agreeing to carry him and his baggage with due care, contemplated incurring a liability in respect to a large sum of money of which defendant had no knowledge, and which he was carrying solely for the purpose of transporting it from one place to another.” (Id., 280.) And the same disposition was made of a claim for the loss of money carried to purchase clothing, in Hicox v. Nan. R. R. Co. (31 Conn., 281). No authority has been cited, nor has any been found, extending the liability of a carrier of passengers or their baggage.so far as to include a loss incurred under the circumstances shown in this case. But the rule maintained by all of those which have been consulted exonerate the carrier. It did not, in any form, contract or undertake to carry the property which was taken from the plaintiff’s person. He did not request it to do so, nor to afford him special protection in his own effort to do that. But he took the exclusive care and carriage of it himself, and it was to his own failure, and not to that of the company, that the loss was attributable. If the defendant could be held liable for this loss, then there would be clearly no limit beyond which the liability could not be extended for property or money carried upon the person of the passenger, and the rule limiting the liability of the carrier to a reasonable amount of money to meet the expenses and conveniences of the traveler, would be so completely evaded as to be practically nullified.

Authorities have been relied upon in support of the ruling at the Circuit, decided upon the general obligations of the carrier to exercise tbe utmost vigilance in maintaining order and guarding passengers against violence. They are mostly referred to in the ease of Putnam v. Seventh Avenue Railroad Company (55 N. Y., 108). But neither of these authorities go far enough in the principle maintained by them to support this recovery; and the same thing is true of Croaker v. Chicago, etc., R. R. Co. (36 Wis., 657), where the company was held liable for the insulting conduct of its conductor to a female passenger. (See, also, Baltimore and Ohio R. R. Co. v. Blocker, 27 Md., 277.)

So far as injury or insult to passengers may be probable or reasonably anticipated, the carrier is certainly bound by its obligations to guard against them. It is bound to protect the passenger against injury, so far as its occurrence can be considered probable, and in this case there may have been remissness in not having one of its servants or employes upon this car at the time of the robbery. But if that was a careless omission, the plaintiff’s loss was not occasioned by it. It occurred because of his own injudicious conduct in carrying this large amount of securities about his person, and in that way exposed to loss by theft and robbery. His property was not lost by reason of any carelessness of the carrier, because it had been placed under no obligation to observe care for its preservation, but by an intervening cause not produced or set in operation by any act or omission on its part, and the loss was too remote to constitute a valid claim under the principle already referred to, obligating the carrier to protect the person of the passenger, so far as injury to him could be reasonably suspected or anticipated. (Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210.)

No such consequence could be contemplated from the omission to do that, as a'robbery of this description, because it was not to be supposed that valuable securities would be carried in that manner about the person; and as no special contract was made binding the carrier for their safety, that risk was the passenger’s and not the defendant’s.

A different rule has been applied to the liability of innkeepers. They have been held liable for whatever the guest may have with him, whether goods or money, which are lost at the inn. It arose out of the obligation to secure the safety of the guest, and whatever he had with him, and for that the innkeeper was entitled to adequate compensation. (Berkshire Woolen Co. v. Proctor, 7 Cush., 417.) But this rule has no application to tbe case of ' a carrier of passengers, as will be seen by the cases referred to in the opinion in this case (id., 427); and even that has been materially modified by statutes in this and many of the other States. (Laws of 1855, 774, chap. 421; Laws of 1866, vol. 2, 1415, chap. 658.)

The carrier may be rendered liable for the loss of valuable securities and money to any amount. But, for the purpose of securing that result, the property must be delivered into his or its custody to be carried and transported for reasonable hire, and not retained upon or about the person of the passenger unknown to the carrier or any of its or his agents.

The verdict should be set aside, and a new trial ordered; with costs to abide the event.

Davis, P. J., concurred; Beady, J., dissented.

Yerdict set aside, new trial ordered, costs to abide event.


text:
    WILLIAM H. HUME, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Municipal corporation — liability of, for damages occasioned by defective awnings in street — its duty as to.

    Under the provisions of the Montgomerie charter and of chapter 8& of 1813, the common council of the city of New York were authorized to pass ordinances regulating the erection of awnings in the public streets, and an awning erected in pursuance of, and in compliance with the provision thereof, is not an unlawful structure.
    An ordinance required all awnings to he constructed in compliance with the provisions thereof, and under the direction of the street commissioner. An awning was constructed in substantial compliance with the ordinance, but without the permission of the street commissioner.' Held, that the fact that the awning was allowed to remain undisturbed for a period of nearly seven years, without any dissent on the part of that officer or of any of the other public authorities, dispensed with the necessity of procuring the permission of the street commissioner, and that the structure was a lawful one.

      Semble, that where knowledge of the existence of unlawful structures in the public streets is brought home to the corporate authorities, it is their duty to remove tile same, and in case of their failure so to do, the corporation is liable to a third person for the damages arising from an injury occasioned thereby.
    An awning was erected by the occupant of a store in the city of New York, resting upon rafters, one end of which was supported by a rail sustained by a row of posts at the curbstone, the other being nailed to a cleat on the face of the building. Nearly seven years after its erection a portion of the awning, owing to an accumulation of snow thereon, fell and struck the plaintiff, who was standing thereunder. Shortly before the accident the post which supported the portion of the awning which fell had been struck and injured by a fire engine, but had thereafter been thoroughly repaired. Upon the trial it was insisted that the construction of the awning was negligent and defective; in that the ends of the rafters should have been fastened to the beams of the building, or have rested upon the cleat, instead of being simply nailed thereto.

      Held (1), that the fact that the awning had proved itself capable of sustaining the burden to which it was subjected for nearly seven years, and had then yielded at a point where its strength had been impaired by an accident, was conclusive in favor of the security of its construction.

      Held, further, that even if there were any d.efect in the construction of the awning, it was not of such a character as that negligence or carelessness could be imputed to the officers of the defendant for their failure to detect the same.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      A. T. Regnier, for the appellant.

      Edmv/nd Randolph Robinson, for the respondent.
   DANIELS, J.:

The recovery in this action was for the damages caused to the plaintiff, by a personal injury produced by the falling of a portion of a wooden awning, erected on the corner of Fourth avenue and One Hundred and Twenty-fifth street, in the city of New York. The plaintiff stood under the awning awaiting the cars, on which it was his design to take passage, when the accident occurred. A very recent as well as heavy body of snow had fallen, and such a quantity of it rested upon the awning as to separate about ten feet of it from the building to which the inside of it had been attached, and precipitate it upon the plaintiff.

The awning was erected by the tenant of the building about the month of June,-1860, for the convenience of his business, which was that of a baker. The injury was occasioned to the plaintiff near five o’clock in the afternoon, on the 22d day of February, 1867. The awning was sustained at the outside, near the curbstone of the street, by posts eight feet in hight and a rail running through those posts on which the rafters rested, which at the other end were attached by a cleat or a strip of board nailed to the building, at the hight of twelve feet from the sidewalk. These rafters were not made to rest upon the upper side of the cleat, but the ends of them were placed against it and supported there only by nails passing through the end of the rafters into the cleat by the process called toe-nailing, which was driving the nails obliquely through the side and near the end of the rafter into the cleat. The nails were stated to have been about an inch and a-half in length and to have passed through the cleat. The rafters at the outside rested upon, without being secured to, the rails extending through the posts, and on them was placed a covering of floor plank from the building for the distance of twelve or thirteen feet, leaving an open space beyond them of five or six feet to the rail passing through the posts. There were three posts on the Fourth avenue side, and two on the One Hundred and Twenty-fifth street side, and what was called a hip rafter at the corner, extending from the corner of the building to the rail between the last post on one street to the first one on the other street. The portion of the awning which fell was that extending from the last post on Fourth avenue to the first on One Hundred and Twenty-fifth street, and it all fell together by becoming separated from the building where the rafters had been nailed to the cleat. The nails are stated to have drawn out, which left this portion of the awning unsupported at the side of the building, and it fell at that end to the sidewalk without separating from the rafters.

It has been claimed that this was an unlawful incumbrance of the street, and that the defendant therefore became liable to tliejDlaintifi for allowing its continuance, and the cases of Congreve v. Smith (18 N. Y., 79); Knox v. Mayor, etc. (55 Farb., 104), and Irvin v. Wood (4 Robertson, 138 ; affirmed 51 N. Y., 224) are relied upon as supporting that position. The second of these cases was a direct proceeding for the removal of the obstruction in the street, and the others were actions against the person by whose immediate instrumentality the unlawful object had been placed in it; and they coq-tain nothing warranting the conclusion that the defendant would become chargeable with liability for injuries sustained, merely because of the existence in or over a street of the city of an unlawful obstruction or an unsafe erection. The rule creating corporate liability must be very much the same in all cases, where the cause of the injury is produced by the act of a third person. And if the object unlawfully placed upon or over the highway has been so long continued as to charge the municipality with knowledge of its existence, it may very well be that in such a case as that it would become liable for neglecting to interpose the proper authority for its removal. The existence of an unlawful structure known to be so by the public authorities would probably create such a duty for its removal, as to render the corporation liable for the consequences of an injury, result from neglecting to perform it. For that reason, as the awning in this instance was uninterruptedly maintained for a period of about seven years, and its existence must have become known to the corporate officers charged with the care and safety of the streets, it will become necessary to determine whether it was, as it has been claimed to have been, an unlawful structure.

It was conceded upon the trial, that both these streets were laid out by the commissioners appointed under chapter 115 of the Laws of 1807, and that the land was acquired for them and the streets opened, pursuant to the provisions of chapter 86 of the Laws of 1813 (Yol. 2, R. L., p. 342), and by the terms of that act, the title so obtained was secured for the purpose that the land should be appropriated and kept open, for or as part of a public street, avenue, square, or place forever, in like manner as the other public streets, avenues, squares and places in the said city are, and of right ought to be. (Yol. 1, R. L., 1813, 414.) And as to such streets, and all others in the city, it was declared and provided further : “ That the mayor, aldermen and commonalty of the city of New York, in common council convened, and their successors, shall continue to be commissioners, to regulate and to keep in repair the present roads or highways and to regulate and keep in repair sirch other public roads or highways as shall hereafter be laid out or opened in the said city and county. (Idem 423, § 193.) And in both respects this was no more than a substantial repetition of previous charters and acts, relating to the city of New York. The common council was not only required to preserve and keep the streets in repair, but they were also to regulate them, and that could only be done by the adoption of suitable and proper regulations and ordinances for that purpose. There was no restraint or limit placed upon this authority, other than that which was to be implied from the coincident obligation of keeping the streets themselves in order and free from obstruction, for the safe and convenient use of persons having occasion to pass over them. That, of course, was the paramount object of maintaining them, and to promote it, and at the same time subject to it, 'the common council was invested with complete authority to regulate them by means of its ordinances. This was amply provided by the section of the act of 1813 already mentioned, and by another still more general provision made by section fourteen of the Montgomerie charter.

Pursuant to this authority an ordinance was enacted, before the erection of the awning by which the plaintiff was injured, regulating the manner of their construction, and that continued in force at the time of such injury. (Yol. 1, Laws of 1857, 885, § 32.) By that it was provided that all posts fixed in any street for the purpose of supporting any awning, shall not exceed nine inches in diameter, and the rail crossing the same shall not exceed seven inches in width or hight, and four inches in thickness; the said posts shall be placed next to and along the inside of the curbstone, and the upper side of the rail which is intended to support the awning shall not be less than eight feet nor over ten feet in hight above the'sidewalk, and the cross-rail shall be strongly morticed through the upright post. (Chap. 2-1, title 2, § 23, of ordinances of 1815 ; chap 21, § 15, ordinances of 18'59.) This ordinance, by a clear implication, allowed the owners and occupants of buildings the liberty to promote their convenience by erecting awnings over the sidewalks, and the only restraint placed upon its enjoyment was contained in the next section, which provided that it should be done under the direction of the street commissioner, and be made conformable to the section preceding it, which has been quoted at large. Other provisions were also made upon the same subject, by which awnings with iron brackets were prescribed for streets not exceeding the width of forty feet, and with iron posts and cross-Rails in streets of a greater width than that, in case, the wooden awning posts in the latter streets had been or should be directed to be removed. But as neither of these streets appeared to be of a less width than forty feet, and no directions for the removal of the wooden posts had been given, these provisions do not require special consideration in the disposition of this case. The awning in controversy was controlled by the two sections of the ordinances first referred to, and under them it would clearly have been a lawful structure, if it had been erected under the direction of the street commissioner.

It was within the power given to the common council for the regulations of the streets, and was erected according to the plan devised by the ordinance. But that was done, as the evidence showed, without any permission from the street commissioner. It was not constructed under the direction of the street commissioner, as it should have been. But as it was allowed to. remain in front of the occupant’s premises for a period of nearly seven years without any dissent on the part of that officer, or any other municipal official, it may be presumed from that circumstance to have received his approbation, and that would be legally equivalent to the direction rendered necessary by the terms of the ordinance. (Palmer v. Yates, 3 Sand., 138.) But if constructed according to the plan of the ordinance, without that being done under the direction of the street commissioner, it was not declared to be unlawful or subject to subsequent removal merely on that account. The consequence of the default was declared to be, that the person failing to secure the direction should be liable to a penalty of ten dollars for the offense committed, and even that does not appear to have been ever insisted upon in this instance. After its erection the awning was permitted to stand as it had been placed in front of the occupant’s premises, without any objection on the part of the public authorities, and that sufficiently dispensed with the failure to procure the requisite direction to render the structure a lawful one. The form of its erection was substantially that which the ordinance had devised and declared, except, perhaps, in the mere location of the posts, which were not as near the curbing as was specified, and as that was its condition, the mere want of the direction prescribed was not a very important circumstance. It did not diminish its stability or security, and if that direction had been literally obtained it would not have protected the plaintiff'from, the injury sustained by him.. It was a circumstance simply affecting the occupant’s relations to the authorities ,of the city, and if the defendant did not complaint of or dissent from the omission, persons having the right to the use of the streets could derive no advantage from it. As it substantially conformed to the ordinance, the occupant merely incurred a liability for the prescribed penalty by his failure to secure the official direction, and whether that should be enforced against him was solely a matter for the defendant’s determination. It was not required to be constructed of different material, because the wooden posts had never been directed to be removed, and such a direction in these streets was necessary before the awning could be required to be replaced by iron. There was nothing in the case from which the awning could be regarded as an unlawful structure. For that reason Trenor v. Jackson (15 Abb. [N. S.], 115) does not apply, to it. On the contrary, its erection and maintenance were sanctioned by the ordinance which the common council of the city, under its authority over the streets, and for the purpose of regulating their use and enjoyment, had complete power to enact.

It was further objected upon the trial that the mode adopted for securing the attachment of the rafters to the cleat was an improper and insecure one, and that it had remained so long in that condition that the defendant was chargeable with knowledge of its defects in that respect. That they might have been more securely attached to the building was made entirely clear by the evidence. That could have been done by securing them to the timbers of the building instead of the cleat, which was itself only nailed to the boards, or by placing them against the building so that their under sides would have rested upon the cleat. But it does not follow from the fact that they could have been rendered more secure, that the mode of construction which was adopted was unsafe. The ordinances of the city prescribed no mode for securing the rafters of the awning to the building; that was left to the judgment and skill of the person engaged in constructing it, and. probably upon the supposition that his interest and the security of his customers would be sufficient to insure safety in that respect. The evidence given by tbe plaintiff’s witnesses, tended to show that this had not been done in the construction of this awning, while that of the defendant’s witnesses was in direct conflict with that conclusion. If the case depended upon which opinion was the correct one, this state of the proof would render it a very proper one for the decision of the jury. But it did not, for the fact that the awning itself had proved sufficient to resist the pressure it had been obliged to sustain for a period of about seven years, and then only yielded at the point where its strength had been impaired by the collision of a fire engine, was conclusive in favor of the security of its construction. The snow with which it had become loaded at the time when it fell, was shown not to have been unprecedented in weight or quantity, and in all but the portion which gave way, it seemed to be entirely adequate to the burthen it had to support. A structure capable of that degree of endurance could not be held to have been either negligently or unsMllfully made; and the defendant was not negligent or careless in not discovering its infirmity, if, in truth, it had any, in this respect. Its officers were not bound to scrutinize the manner of the attachment of the rafters with the skill and discrimination of an expert. That was held by the Court of Appeals when this ease was before that tribunal. (Hume v. Mayor, etc., 47 N. Y., 639.) But what their officers were bound to exercise in their observations was, that degree of care that reasonably prudent persons bestow upon their own affairs. They were obliged to exercise ordinary care and skill in that respect, and in its observance they could not be chargeable with any default, because they did not conclude that this mode of attaching the rafters was a proper one, when the facts were before them that it had proved sufficient for the support of the awning for so long a period of time, and had adequately sustained the burthens it had been required to bear. The inference which would ordinarily be drawn would be that the structure was reasonably secure, and it would be justified by the fact that it fully and safely answered the purposes of its erection. The defendant’s officers were bound to nothing beyond that in this respect, and cannot be held to have been in any legal default, for failing to discover that some more secure mode of attaching the rafters would have been better or more advisable. A mechanic reasonably competent had been selected to oerform the work, and be did it as he deemed that to be proper; its subsequent history confirmed the propriety of the course he had adopted; and, under the circumstances, the defendant could not be affirmed to have been careless or negligent because its officers failed to insist upon a change, that would have rendered the structure secure beyond a possible contingency. Ordinary care upon their part required no such unerring scrutiny or skill, and if it had, the injury sustained by the plaintiff did not result from the want of it.

The evidence of the plaintiff’s witnesses, which was the most favorable to his case, showed that observation was necessary to discover the manner in which the rafters were placed against and secured to the cleat, and from that it was supposed that the observer would conclude that it was an improper and dangerous mode of construction. But while the fact could undoubtedly have been seen, this conclusion would' not under the circumstances, necessarily or even reasonably have resulted from it. It would rather be inferred from the stability indicated by the continuance of the structure, that it had been so securely nailed to the cleat as to render it free from danger. Indeed that would have been the the only proper conclusion to be drawn, as long as there was nothing which could indicate to a simple observer that it had not been so secured. How much nailing that would require, or whether in fact it had been done, could only be ascertained by a closer examination than ordinary care would require to be bestowed. The defect mentioned by the witnesses, which would be discovered by merely looking at it, was in the plan of construction, not in the manner in which the work itself had been performed. If the jury could have inferred that both were in fact improper, they could only do so by looking at it with the dyes of experts, and that required a degree of skill and attention the defendant was not bound through its officers to exercise; even that was not in all instances effectual, for it appeared by the evidence of one witness familiar with the construction of awnings, that he passed under this one every morning for about three years, without discovering that it was in any way dangerous from the mode adopted for the construction.

It appeared by the evidence, that -the portion of the awning extending from the last post on Fourth avenue to One Hundred and Twenty-fifth street, was the part which fell and it went down in one mass, without separating.

This was on the 22d day of February, 1867.- In the preceding September or October, a fire engine had collided with the post on Fourth avenue, which wrenched the rail from it running from that post to the first one on One Hundred and Twenty-fifth street. The foreman of the company directed the occupant of the building to have the injury repaired at his expense, and the occupant’s evidence, which was in no way contradicted or discredited, showed that he immediately employed a carpenter to repair it. He directed him to repair and make it as good as it had previously been. And he repaired it by restoring the rail to its proper condition, and did nothing more than that. But when the work was completed there was nothing to show that it had not been completely repaired. Neither this witness nor any other examined in the case appears to have discovered any thing in the appearance of the awning, after the repair had been made, which indicated that this portion was not equally as sound, as the portions that had not been injured by the collision. But that was very clearly not the fact. If it had been, it is not probable that it would have fallen as it did. The probability is that when the post was wrenched, the attachment of the rafters to the cleat was disturbed and weakened, and that it fell in consequence of its impaired strength at that point. After the accident the nails that had passed from the rafters into the cleat were discovered to be rusty, and seemed to have been drawn out. But no evidence was given tending to show that any notice or knowledge of this injury had been received by the defendant or any of its officers, or of the fact that it had been imperfectly repaired; neither was it shown that the awning itself in any way indicated by its appearance, that the work of repairing it had not been thoroughly done. These were the causes of its inability to maintain the weight of the snow upon it, and which consequently, by its fall, produced the injury sustained by the plaintiff, and as to neither was any fault or omission shown affecting the defendant. If these causes had not intervened, there is not the slightest reason for supposing that this part of the awning would not have been equally as capable of sustaining the pressure upon it, as the residue of it did, and as this portion had previously done, when similar loads of snow had previously been deposited upon it, and as to them the defendant had no actual notice, and there was no such visible indication of their existence as would charge it with constructive notice.

It appeared that the colliding engine was the property of the city, but that circumstance was not sufficient to render the defendant liable for the depredations produced by its heedless or careless management by those in charge of it. Municipal corporations have often been held liable for injurious consequences resulting to persons, by reason of the unsafe condition of their streets; but ordinarily, the liability has been a qualified one, depending on the want of that care and skill which, under the circumstances, was reasonably required to protect persons lawfully using them, against the risk of accident. The dangers to be guarded against have usually been of an observable and visible nature, and the corporation has appeared to have neglected to guard or remove them, after actual or constructive notice of their existence. A violation of its duty to the public has been shown as the foundation of the liability. Where that has not been made to appear, and no actual wrong has been shown on the part of the corporation or its officers, the right to recover damages for personal injuries has not been maintained, except by force of positive statutory provisions imposing an unqualified degree of responsibility. A statute of this description has existed in the State of Massachusetts, rendering the municipality liable for the consequences of a dangerous object in or about a highway, after it has continued for the period of twenty-four hours, and under that a liability for injuries has been created upon facts similar to those shown to have existed in this case. (Drake v. City of Lowell, 13 Met., 292; Day v. Milford, 5 Allen, 98.)

But even' under that statute, the court declined to hold a city liable for an injury produced by the falling of a sign insecurely suspended by an iron rod, projecting from a building over the sidewalk. (Jones v. City of Boston, 104 Mass., 75.) As the liability could not be maintained by the force of the statute, the action failed because the common law did not sustain it upon the facts. A similar conclusion was declared in the case of Hewison v. New Haven (34 Conn., 136), where it was held that the city was not liable to a person injured by a weight, falling from the corner of. a flag suspended over the street. No such statute exists in this State, and consequently the principle of the common law has been alone applied to this class of cases, and that requires that neglect or want of proper care shall be shown in guarding or removing dangerous obstructions in the public streets, after actual or constructive notice of their existence, before the municipality can be held liable for personal injuries sustained by means of them. It is a principle which has been often invoked, and uniformly applied in all cases where neither the municipality itself nor any of its officers has had any agency in creating the obstruction producing the injury. But negligence. has been shown in omitting to guard or remove it. (James v. New Haven, 34 Conn., 1; French v. Brunswick, 21 Me., 29; Grove v. Fort Wayne, 45 Ind., 429; Mayor v. Sheffield, 4 Wall., 189; Coggswell v. Lexington, 4 Cush., 307; Hutson v. Mayor, 5 Seld., 163; Griffen v. Same, id., 456; Requa v. City of Rochester, 45 N. Y., 130; Todd v. The City of Troy, 61 id., 506.)

But it does not sustain the plaintiff’s action because the imperfect structure was hot erected by the defendant, or under its authority, and nothing appeared from which it can be held that its officers were in default, for not knowing or observing the existence of its imperfection. The case was not one which should have been submitted to the jury, and the Court of Appeals, in its decision in it, did not require that to be done, as there was no evidence showing that the defendant had negligently' allowed the awning to remain projected over the sidewalk, before or after the collision by which it had been rendered unsafe, and it appeared at all times to have bqen in a reasonably secure condition. The case is one decidedly appealing to the sympathies, but that can afford no justification for the allowance of a recovery which, upon the evidence, cannot be founded upon the well established legal principles applicable to it. The judgment should be reversed and a new trial directed, with costs to abide the event.

Davis, P. J., concurred; Beady, J., dissented.

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


author: DaNIels, J.:

text:
    MANNING, BOWMAN & COMPANY, Respondents, v. PATRICK H. KEENAN and others, Appellants.

      Oode, § 216 — notice of, claim wider — IAaMlity of sheriff, for delivery of property held underr replevin, after service of notice of claim, — Ooroner—serrvAoe upon person in change of his office.

    Where, while personal property seized hy a coroner in an action to recover the possession thereof from the sheriff, who had held it under an execution, was still in the coroner’s possession, a notice of claim thereto by a third person, together with the affidavit required by section 216 of the Code, was served upon the coroner, and he thereafter, upon receiving a bond of indemnity, delivered the same to the party at whose instance it was seized by him, held, that he thereby rendered himself liable to an action for the conversion thereof by the party serving the notice of claim.

      Foster v. Peltihone (20 Barb., 350); King v. Oder (4 Duer, 431); and Bullís v. Mont-gom&ry (50 N. Y., 352) distinguished.
    Where coroners provide an office and have there a person to whom is intrusted the entire charge of the office business, and of the service of process, a delivery to him of a notice of claim to personal property, and of the affidavit required by section 216 of the Code, is legally a delivery thereof to them.
    Appeal from a judgment in favor of the plaintiff^ a manufacturing corporation, entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial.
    The action was brought against the defendants, coroners of the city of New York, to recover the value of certain cases of silverware. The property had been seized by the sheriff under an execution against one Olney. While it was in his hands one Hodges commenced an action of replevin to recover the same, in which the property was taken by the defendants. While the property was still in their hands the plaintiff served upon them the notice of claim and affidavit required by section 216 of the Code, and demanded that the goods be delivered to it. The defendants took a bond of indemnity against this claim from the plaintiff in the action of replevin, and subsequently delivered the goods to him, whereupon which this action was commenced.

      A. J. Vanderjpoel and Robert 8. Oreen, for the appellants.
    The defendants were rightfully in possession of the goods, having taken them by virtue of claim and delivery proceedings from the possesssion of tbe sheriff. Before the Code, trespass could not be maintained by the owner, of goods against the sheriff, for taking them under and pursuant to a writ of replevin against another person having the goods in possession. (Foster v. Peüibone, 20 Barb., 350; -Shopman v. Clark, 4 Den., 445; Willard v. Kimball, 10 Allen, 211.) No change has been made by the Code which confers a right of action on the party not previously enjoyed. (Schofield v. Whitelegge, 49 N. Y-, 259.) Section 216 of the Code does not in terms give any right of action to the third party. Under it he acquires no right to have a delivery of the property to him. {Haskins v. Kell/y, 1 Bob., 160; Peid v. Kelly [Com. Pleas], not reported.)

      Addison Brown, for the respondent.
   DaNIels, J.:

This action was brought by the plaintiff, a manufacturing corporation, against the defendants as coroners, to recover the value of property taken by them from the sheriff, under proceedings for its claim and delivery. He had levied upon it as the property of Olney, the purchaser from the plaintiff, under an execution issued upon a judgment recovered by the Woodward Steam Pump Manufacturing Company. The proceedings under which the defendants took the property from the sheriff, were taken in an action prose-. cuted by Hodges, as a purchaser under and from Olney.

Evidence was given tending to show that the property was claimed by the plaintiff pursuant to the provisions of the Code of Procedure, while it was in the possession of the defendants, under .the proceedings for its claim and delivery; but that was objected to as defective, for two reasons: First, that the original affidavit was not served; and, secondly, if the evidence showed such a service, it should have been made personally upon the defendants, and not ás it was, upon their clerk in their office. It appeared that an affidavit in support of the plaintiff’s claim as owner was in fact made, and that it was copied and service of it directed. But in the admission given by the defendants’ clerk, it was stated that a copy of the copy affidavit on which the admission was indorsed, bad been served. This was probably a mere informality. It did not appear that more than one copy was made, and as the admission was indorsed upon that, the original must have been the one received by the defendants’ clerk. The evidence was clearly sufficient to require the submission of the point to the jury, as it was done by the court; and they must have found, as they very well could from the evidence upon this subject, that it was the original that was served, because they were directed that its service was essential to a right to recover on the part of the plaintiff. The claim and affidavit were delivered to the person having, as he stated, the entire charge of the office business of the coroners. He kept their books, and attended to the service of process against the sheriff. He took entire charge of the office business and the service of process, and that continued during the full term of the defendants as coroners. An office was provided, and this person was placed by them in charge of its business. It must have been intended by them that it should be understood from those acts, that all papers officially for them should be delivered there, to the person placed by them in charge of their office. He represented them in all their official business, and transacted it for them under their authority. For that reason the delivery of the claim and affidavit there to him, was legally a delivery of it to them. It is manifest that such would have been the final result, ■ even if they had been served personally with the papers. They would in the end have been returned there to him for his action, as their authorized subordinate.

The delivery was also within the spirit of the provision declaring that all process in suits to which the sheriff is a party shall be delivered to the coroner, in the same manner in all respects as are prescribed by law in respect to sheriffs. (3 K.. S. [5th ed.], 741, § 109.) And that, in case of the sheriff, could be done by leaving the papers at his office. (Id. 476, § 45.) As the action was against the sheriff, the defendants, as coroners, possessed the same authority over its proceedings as the sheriff has in ordinary cases. The intention of the law was to assimilate their powers to that extent, and to promote that, end it was provided by the Code that all its provisions relating to sheriffs should apply to coroners, when the sheriff is a party. (§ 419.)

Besides that the object designed was accomplished by the papers delivered, and the service made of them. That was to enable the defendants to protect themselves, by a proper undertaking against the claim made to the property by the plaintiff. And the evidence of their subordinate shows that such an undertaking was procured, in consequence of the claim made. It is entirely clear that these objections can be of no service in this case to the defendants. They have hardly a colorable foundation to rest upon.

It has been also objected that the proceedings in which the defendants took and delivered the property, constituted a legal defense to the action for their conversion by the plaintiff. And several authorities have been cited and relied upon as supporting that conclusion. But they were' neither of them actions in which the officer was prosecuted by the claimant in whose behalf a claim of title had been served, sustained by the affidavit provided for by the Code in that class of cases. These authorities hold that the proceedings provided for the claim and delivery will protect the officer against an action in favor of a third person, so far as he may act conformably to the direction which it is provided may be given him. (Foster v. Pettibone, 20 Barb., 350; King v. Orser, 4 Duer, 431.) And to that extent they have been sustained by the Court of Appeals. (Bullis v. Montgomery, 50 N. Y., 352.) But if the officer exceeds the authority conferred upon him by such proceedings, and takes the property claimed out of the possession of any other person' than the defendant or some other person holding it for him, they will fail to protect him against an action by another asserting a paramount title to it. The cases of Haskins v. Kelly (1 Robertson, 160) and Stimpson v. Reynolds (14 Barb., 506) went farther, and held that the proceedings formed no protection to the officer against an action in any ease. But that doctrine has been substantially overruled by the other authorities referred to, the last of which was a decision by the Court of Appeals, and consequently controlling upon this subject.

In the present case it has not been claimed that the defendants did not take the property from the possesion of the sheriff under the proceedings instituted for that purpose. But it is insisted that a right to prosecute the defendants for the property has been given by the Code of Procedure where, as in this case, a claim of title to the property, supported by affidavit, has been served upon the officers while they held possession of it. That has provided when the property taken shall be claimed by any other person than the defendant or his agent, that such person may make an affidavit of his title and right of possession, stating the grounds of such right and title, and serve it upon the sheriff, who- shall thereupon be not bound to keep the property or deliver it to the plaintiff' in the action, unless he shall, on demand, indemnify the sheriff against the claim made, by an undertaking executed by two sureties, accompanied by their affidavits that they are worth double the value of the property as specified in the affidavit of. the plaintiff. And it has been further provided that no claim to the property by any other person than the defendant, or his agent, shall be valid against the sheriff unless made in that manner, and a reasonable time after that has been afforded- him to demand such indemnity. (Code, § 216.) The enactment of this section proceeded upon the assumption, that the sheriff would be liable for the property on the service of the claim provided for, after obtaining the indemnity mentioned. There could be no necessity for such indemnity unless such a liability was intended to be created. It would be idle to provide him with the means of indemnity against the claim made if he would not become liable to the person making it, by the subsequent delivery of the property to the plaintiff, on whose behalf he had taken it. The condition of the undertaking he is to receive is solely adapted to his protection against just that nature of liability. It is solely to protect him against such claim, which would be clearly needless if it were not designed that the sheriff might become liable to an action for the property to the person making the claim, after he received the undertaking and delivered over the property to the plaintiff. The scope and object of the provision were to place the claimant in a ¡position where he could sue the sheriff for the property, and, at the same time, secure indemnity to the latter against his liability to such an action. By the delivery of the property in hostility to the rights of the plaintiff after the claim was made, supported by the affidavit, and the undertaking was obtained, the defendants became liable to the present action, for this section was applicable to their conduct the same as it would have been, by its terms, if it bad been the sheriff who acted in the case. (Code, § 419.)

The plaintiff was a corporation formed under the laws of Connecticut, and engaged in business in that State as a manufacturer of silver-plated and hollow ware. Its agent in the city of New York was Andrew Losee, and through him Olney ordered the property in controversy. When it was ready for delivery, Losee accompanied it to Olney’s store, in order to receive the purchase-price. But the property was not received, nor the price paid, because of the absence of Olney. It was left at his store, however, without any formal delivery or receipt of it, until he should appear and pay the price. That was not done on account of his inability to procure the money. And it was finally arranged that Olney should hold the property for the account of the plaintiff, deliver his notes for the price, and secure their payment by a mortgage on satisfactory real estate. A failure to give the security, it was agreed should vitiate and annul the agreement. The mortgage was not given, and the consequence stipulated by the agreement necessarily followed. It terminated Olney’s right to hold the property, and left the plaintiff at liberty to resume possession for the non-payment of the purchase-price, which was to have been received at the time the property was taken to his store. He, however, continued to retain the property until he closed his store, and he then put it in store in the city of New York. That occurred soon after his default, in failing to deliver the mortgage. The closing of the store and the storage of the property became known to Losee, and on behalf of the plaintiff, with the assent of Olney, he obtained it and took it to his own store on John street, where it was to be retained until Olney opened another store and paid the purchase-price. This arrangement was commuicated by Olney to Manning, who was one of the corporators and the plaintiff’s managing agent. The statement made was that the goods were taken back to Losee’s store, and would be there in the plaintiff’s possession as security for the payment of the debt, and that when he took them away he would have the-money. There was no objection made to this arrangement, and for that reason it may be assumed to have been practically assented to by the plaintiff’s managing agent. By it Losee was to hold the property for the plaintiff until Olney should pay for it and take it away; and no authority whatever was given to Losee to change it; neither did he have any such authority by virtue of his employment, which was only that of an agent to sell goods for the plaintiff. But about a month after the property was placed in the store of Losee, Olney applied to him for a receipt for the avowed purpose of procuring an insurance upon it, and Losee, in compliance with the request, in his own name, executed and delivered a receipt, stating that he had received the property in store at the rate of fifty cents a case, for the eight cases, per month. Added to the receipt was a statement of the valuation, at the sum of $2,000, with the marks and numbers of the cases. Instead of procuring an insurance upon the property, Olney transferred the receipt to Hodges for the sum of $500, and a stipulation, the terms of which he failed to state, for some further payment, which Hodges finally declined to make because it had been consumed in the expenses of legal proceedings. The court was requested to charge the jury that, if Losee were authorized to give the receipt, and Hodges was a purchaser of it in good faith for value, their verdict should be for the defendants. That proposition was charged, but the court declined to hold that Losee had that authority, and to that the defendants who had taken the property for Hodges as plaintiff in the action against the sheriff, and placed their defense upon his right to it, took an exception, and that is now relied upon as a reason why the judgment should be reversed. But as the employment of Losee by the plaintiff was limited to the sale of its property, and orders contemplating sales, and by the receipt of that which is in controversy he was merely to hold it for the benefit of the plaintiff until Olney paid for and removed it, he had no power so far to change his relation to it as to become a simple bailee of it, as the receipt signed by him imported him to be, for the benefit of Olney. That change was neither within nor incident to the authority which was given, and for that reason it could not be attended with the effect of depriving the plaintiff of its title and transferring it to Hodges as the purchaser of the receipt. It was no part of the power to sell, nor of that afterward created, which was that of a simple custodian until the purchase-price of the property should be paid. To bind the principal, the act of the agent must be within the real or apparent authority of the agent. (1 Parsons on Contracts [6tb ecL], 44-46; Weisser v. Denison, 6 Seld., 69.)

The deficiency in the authority of the agent has not been avoided by any thing contained in the act to prevent the issuing of false receipts by warehousemen and other persons. (Chap. 326, Laws of 1858.) The object of that act was to prevent persons from issuing false receipts, stating that the property mentioned in them was held in store, when that was no t the fact. It was no part of its purpose to empower one person to make an unauthorized disposition of the property of another, merely from the circumstance that he happened at the time to be its custodian. But its object was to declare the effect of receipts properly as well as lawfully issued, and to restrain their creation and use to that class of cases.

No ratification of the act of Losee, in giving the receipt, appeared in the case. It was not shown that the plaintiff*, or its managing agent, or either of its officers, was made aware of its existence until this action was brought to recover'the value of the property from the defendants. And that has ever since proceeded upon the disaffirmance of Olney’s right to the property, without payment of the purchase-price.

There was evidence in the case tending to show that Hodges was not a purchaser of the receipt in good faith. It appeared that he purchased it without any inspection or examination of the property mentioned in it; that it had no relation to any business in which he was engaged, and the price paid for it was but a quarter of what was stated to have been its value. (Huff v. Wagner, 63 Barb., 215, 235, 236.) It cannot, however, be necessary to pursue this subject, inasmuch as he acquired no title because the receipt was issued without authority by the person executing it. Evidence was given showing what had transpired between Olney and the persons representing the plaintiff’ concerning this property, which was objected to by the defendants. But it was important to show that, for the purpose of exhibiting the nature and effect of the transactions it related to. They could not well have been properly proven in any other way. The evidence was received to show what had taken place, and from that the jury was warranted in concluding that the plaintiff never had parted with its title to the property.

Olney prosecuted an action against the plaintiff to secure a surrender of the notes given for the price of the property, on the allegation that they were usurious. The plaintiff claimed to be allowed the amount of the notes as a counter-claim in that suit. When the case was called for trial the cause of action was abandoned, and judgment was directed for the amount of the notes. But no judgment was afterward entered in the case. The plaintiff in the suit was insolvent, and when the notes were given it was upon an understanding that the plaintiff, in this case should still retain its interest in and control over the property, unless the mortgage it was to have as security was given, and that never was afterward delivered. What was done in that case was no defense to the present action. It was not very material to show that Olney did not tell Losee that he was in bankruptcy and expected to be discharged, when he applied for the sale of the property to him, but he swore that he did say that to him, and there was for that reason no impropriety in allowing the statement to be contradicted.

Other objections have been presented to the recovery on the part of the defendants, but they are not such as to require special attention. The fact that the receipt given by Losee was not within the scope of his authority, and for that reason not binding on the plaintiff, renders it unnecessary to examine them further. The judgment recovered was a proper one, and it, as well as the order denying a new trial, should be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed, with costs.


author: DANIELS, J.: Davis, J.:

text:
    BERNARD CASSERLY, as Receiver of the New Amsterdam Fire Insurance Company, Respondent, v. DAVID S. MANNERS and others, Appellants.

      Insurance companies — preferences in contemplation of insolvency — 2 iB' S. \5t7i edi\, 526, § 54 — id., 519, §§ 9, 10' — Motive of directors immaterial — Damages.
    An insurance company, incorporated under the general laws of this State relating thereto, became involved in consequence of heavy losses sustained in the Chicago fire. Subsequently a resolution was adopted directing the reinsurance of all policies issued from its home office, not including agency policies, until such time as a satisfactory adjustment of its Chicago losses could be made, and such reinsurance was accordingly effected by the payment of $40,000 to the company reinsuring said policies. At the time of this agreement- the company was in fact insolvent, although this was not then known to the directors. Held, that such reinsurance was a violation of the provisions of the Revised Statutes (2 R. S. [5th ed.], 519, §§ 9,10) prohibiting the transfer of the effects of a corporation in contemplation of insolvency, with intent to give a preference to any particular creditor, and that the directors of the company were personally liable to the holders of policies not covered by such reinsurance, to the extent of the loss sustained by them in consequence thereof.
    The defendants insisted that the action could not be maintained for the reason that the contract for reinsurance was void, because made with a New Jersey corporation, which had not complied with the laws of this State so as to entitle it to transact business within it.

      Held, that as the New Jersey company had fully executed and performed the agreement on its part, by paying all losses arising on risks reinsured by it, this defense was properly overruled.

      Held, further, that the fact that the directors, in contemplation of the company’s insolvency, entered into the agreement in good faith, under the belief that they were acting for the best interests of the corporation, and that neither the policyholders nor creditors would be prejudiced thereby, did not relieve them from their statutory liability.
    In an action by the receiver of the insolvent corporation against the directors thereof to enforce the liability imposed upon them by the statute, held, that there should be deducted from the $40,000 paid for reinsurance, the sum which the receiver would have been obliged to pay to the holders of the reinsured policies under which losses had occurred.
    Appeal from a judgment in favor of the plaintiff, entered on the trial of this action at Special Term.

      Joshua M. Van Gott, for the appellant.

      Wheeler H. Peokham, for the respondent.
   DANIELS, J.:

The plaintiff instituted and prosecuted this action as receiver of the New Amsterdam Insurance Company, which was incorporated under the laws of this State in the month of April, 1852. By one of the provisions of the statute relating to insurance companies, incorporated by virtue of its enactment, it was empowered to make reinsurance of any of the risks taken by it, and particularly upon any or all the risks mentioned in the first section of the act. (2 R. S. [5th ed.], 743, § 2.) But at the same time it was rendered subject to all the provisions of the Revised Statutes in relation to corporations, so far as the same should be applicable to it. (Id., 749, § 18.) And that made it subject to the disabilities and obligations created by the statute relating to moneyed corporations, for corporations authorized by law to make insurance, are declared to be included within that class. (Id., 526, § 54.) By one of the sections in that manner made applicable to these corporations, it has been provided that no conveyance, assignment or transfer of any of its real estate or effects, nor any payment made, judgment suffered, lien created or security given by any such corporation, when insolvent or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law, “ and every director who shall violate or be concerned in violating any provision ” contained in that section, “ shall be liable personally to the creditors and stockholders respectively, of the corporation of which he shall be a director to the full extent of any loss they may respectively sustain from such violation.” (2 R. S. [5th ed.], 519, §§ 9, 10.) The defendants in this action were directors of this insurance company, and it was for an alleged violation of the prohibitions of the ninth section of this statute that the judgment in it was recovered against them. The corporation was involved in heavy losses by the fire in' Chicago, which occurred in the early part of October, 1871; and on the twenty-sixth of that month a resolution was adopted by its directors, which authorized and directed its officers to reinsure all the policies taken at and issued from its own office, not including agency policies, until such time as a satisfactory adjustment of its Chicago losses could be made, and that for that purpose the sum of $40,000 should be paid as the estimated amount required for the reinsur-anee to tbe Home Insurance Company of New Jersey, by which it was expected to be made. And if the amount should be deficient, or exceed what was required for that purpose, the deficiency was to be paid by, or the excess returned to, the New Amsterdam Fire Insurance Company. On the following day, at Jersey City, the Home Insurance Company adopted a resolution accepting the proposal mentioned, for the sum to be appropriated for that purpose, and subject to its rectification in the manner provided by the directors of the other. company if the amount should prove too great or too small; and the reinsurance was made in accordance with that agreement. It was for appropriating this amount of the money of the company for that object, that the defendants were held liable in this action. It was deemed to be a preference in favor of the persons who had received their policies from the local office of the New Amsterdam Insurance Company, and against those who had received their policies from its agencies, which included the risks taken in Chicago.

It has heen urged that if this view should not be sustained by the provision which the statute has made, that still the judgment must be affirmed, because the officers and directors of both these corporations were in the main the same, and that they could not, therefore, make a valid contract for the reinsurance designed ; and also, that as the Home Insurance Company was a New Jersey corporation, and had not complied with the laws of this State so as to be entitled to transact business within it, the agreement for the reinsurance was unauthorized and void. But these objections cannot afford the plaintiff the assistance expected to be derived from them because the Home Insurance Company never resisted its liability on either of those grounds. It actually executed and performed the agreement made by promptly paying all losses arising on the risks reinsured by it, amounting, as it has been proved and found, to several thousand dollars. And after such a consummation the consideration could not be recovered back, because the obligation might have been, but in fact was not, repudiated as unlawful. The agreement made has been fully performed on both sides, and for that reason cannot be rescinded as unauthorized, or because it was made by persons incapable of representing both the corporations at the same time. The law would not enforce such an agreement as long as it remained executory, neither will it annul it after it has been completely performed. The directors, consequently, cannot be held liable on the ground taken.

It was found as facts that the Home Insurance Company, at the city of New York, agreed to and did reinsure the risks to be taken by it, and then received the $40,000 paid for it. But as the resolution accepting the proposition made was adopted at a meeting of its directors, at Jersey City, according to a subsequent finding of fact, that must be regarded as having been so far qualified as to include only the formal agreement for reinsurance and the receipt of the consideration for it. Whether that would be a violation of the laws of this State imposing certain restraints upon foreign insurance companies, it is not necessary now to determine, for the reason already given. And besides that, the defendants were not held to be liable in this action for violating either of those provisions of the laws. Their liability was placed upon the fact that they had, by providing for the reinsurance, transferred a portion of the effects of the New Amsterdam Insurance Company, when it was insolvent, and contemplated insolvency, with the intent to give a preference to one class of policyholder’s over all others; and the case must now be considered and disposed of under'that view of their responsibility.

When the proposition and agreement were made for the reinsurance, the New Amsterdam Insurance Company had, in fact, become insolvent by means of the losses incurred in Chicago, but while that was evidently feared it was not then known to its officers or directors. They had previously endeavored to secure information of their extent, but were unable to do so until about the 8th of November, 1871, Before that time, and on the twelfth of the preceding October, a resolution was adopted, at a meeting of the board of directors, declaring that if the Chicago losses should not exceed the amount of the capital and surplus of the company, over and above reinsurance, and excluding a certain lease, that the stock of the company should be filled up by the stockholders, pro rata, to any amount required for that purpose; aud an agreement was executed by directors and stockholders, able and willing to perform it, to pay such amounts as might be required to fill up or restore the stock of the company.

It was under these circumstances, and without any knowledge of the extent of the Chicago losses, that the resolution was adopted and carried into effect for the reinsurance of the policies issued at the company’s office; and that, as was found by the learned judge, was done to allay the distrust and alarm of the holders of the company’s policies, occasioned by the fire at Chicago, and because of the difficulty experienced in ascertaining the extent of its losses. And in doing that all the acts and proceedings of the advisory committee, and of the directors themselves, were found to have been done and taken in good faith, and in the belief that they were lawful and proper, and for the best interests of the corporation, and not prejudicial to its policy-holders and creditors. These conclusions of fact were stated when the case was settled, but they are not inconsistent with the one ■ contained in the decision, that the agreement and payment for the reinsurance were made in contemplation of insolvency, and with the intent and understanding that the company might and would compromise with its creditors, particularly including the holders of the policies in Chicago. The facts shown justify the conclusion that the directors had enough before them, without ascertaining the precise extent of the losses encountered in Chicago, to induce the apprehension that the company would be found to have been rendered insolvent by them. The fire had been one incomparably disastrous, and it is a notorious fact that the insurance companies throughout the country distrusted their ability to withstand its consequences. In the case of this company, the local holders of its policies had become alarmed concerning their security under them, and the same sentiment evidently actuated its directors and officers; for without it they would not have been inclined to seek refuge from the result which could then be reasonably anticipated, by the expedient of reinsuring the large amount of policies designed to be protected in that manner, and taking the proceedings they did for filling up the stock of the company. These circumstances very clearly indicated the expectation that the company would prove, as it finally did, to be wholly insolvent. For that reason, apparently, a positive obligation to fill up the stock of the company was neither proposed nor entered into. It merely went so far as to bind the parties subscribing the agreement to perform it, in case the losses of the company at Chicago should not exceed the capital and surplus over and above reinsurance, and excluding its lease. If the losses exceeded that amount, then the obligation to fill up the stock failed to be binding on account of the condition, subject to which it was expressly entered into. And it was feared such would prove to be the fact. That is evident from the preamble preceding the resolution for the reinsurance of the local policies. For by that it was stated that the reinsurance should continue only “ until such time as a satisfactory adjustment” of the Chicago losses could be made; and that contemplated the inability of the company to fully pay them, and the probability that a compromise of some kind would become necessary to adjust them. As experienced business men, the directors, by their conduct, betrayed their conviction that the company would be found incapable of discharging its losses by payment, and that a compromise would be a necessary expedient, and that rendered it evident that insolvency, though not then really known, was actually contemplated. It was -feared and anticipated as an immediately impending event from what, at the time, was known to have transpired, and under the belief that this was probable, the measures complained of were taken to reinsure the local risks; and the fact that they were adopted, as the learned judge found they were, without information of the extent of the Chicago losses, to allay the fears of the holders of other policies in good faith, and with the belief that the acts performed were lawful and proper for the best interests of their company, and not prejudicial to the holders of the policies and its creditors, are not inconsistent with the important circumstance also found that they were taken in contemplation of the company’s insolvency. The directors could very well entertain these convictions and be actuated by these motives, and at the same time design to protect the holders of the policies to be reinsured, because they believed that the company would, in the end, prove to be insolvent. If they had no such apprehension, and did not believe that would probably be found to be its condition, there could have been no sound reason for parting with $40,000 of the company’s money to procure reinsurance of about ten millions of its local risks, as the evidence showed was done by its directors. Their conduct cannot very well be reconciled with any other construction of their design. The court has found, as the evidence proved, that the agreement and the payment for the reinsurance were made with the- understanding, that the company might and would compromise its Chicago losses, and then resume the policies made the subject of the reinsurance. It was an expedient for their preservation and control until the contemplated emergency could be met, and if that should successfully be disposed of, then for their resumption by the company, whose business in that event could be afterward continued. And that, it was found, was taken in contemplation of the company’s insolvency. While the motives of the defendants were in some respects probably commendable, they did, nevertheless involve themselves in a violation of the provisions of the statute designed to secure equality among the creditors of the company. Their act did give the holders of its local policies a preference in the payment of the losses they might sustain, over those whose property had been insured and destroyed in Chicago, and by doing it they correspondingly diminished the fund applicable alike to the payment of all losses. If that could be lawfully done then there would be nothing to hinder an insurance company that had sustained heavy losses, from parting with all its available means to secure the reinsurance of other policies, in case it had issued a sufficient number to require the investment. It would allow the company to deprive itself of the power of paying one class of its creditors for the mere purpose of adding to the security of the others. And that, it was the design of these provisions of the statute to prevent. By appropriating and paying the $40,000 for the payment of the premiums of the reinsurance, the directors must have known that they were doing it for the purpose of preferring the holders of one class of policies to the holders of the others. And their conduct indicates that they were at the time convinced that the company was probably insolvent, and that its insolvency would be discovered as soon as its Chicago losses should be ascertained. They intended to do precisely what was accomplished, which was, to give one class of creditors a preference over the others. The reinsurance could have been provided for with no other design. If that had not been the case it would have been extended so as to include all the policies of the company. And if that design had not controlled the directors’ action the reinsurance clearly would not have been made. What they did, violated the statute, which was enacted for the purpose of securing equality among all the creditors of insolvent corporations (Brouwer v. Harbeck, 5 Seld., 589), as well as their obligations as trustees for all who were entitled to be protected by a just administration of its assets. (Butts v. Wood, 37 N. Y., 317; Jackson v. Ludeling, 21 Wallace, 616.) And that they did so in good faith, and under the belief that they were acting for the best interests of the corporation and not prejudicial to the holders of its policies, or to its creditors, cannot afford them protection against liability for their conduct. That has not been made to depend upon their motives, but upon their acts and the intent accompanying them. When they result in transferring the property, or effects of the corporation, or any part of it, for the purpose of giving a preference to any particular creditor or creditors, over the others, at a time when it has become insolvent, or its insolvency is contemplated as an impending fact, the liability of the directors making and assenting to it has been declared by the statute, and they cannot be exonerated from it, because their motives may, as they were in the present instance, be free from any positively bad intentions. They intended to do precisely what their acts accomplished, and that violated the provisions and restraints of the statute, prescribing what they should not do under the circumstances which had arisen. But while they were justly held to have rendered themselves liable, it did not follow that they should be held answerable for the full amount paid by the company for the reinsurance. That was not necessarily the measure of their liability. The statute, in terms, limited it by “ the full extent of any loss the creditors and stockholders may respectively sustain from such violation.” (2 R. S. [5th ed.], 519, § 10.) The judgment recovered in this case exceeded that, because it was shown that losses to the amount of several thousand dollars had been paid upon the reinsured policies by the Home Insurance Company. To the extent that those losses would have diminished the assets of the company if the reinsurance had not been made, the defendants were entitled to their benefit in ascertaining the amount of their liability. For, so far, the creditors sustained no loss by the act of reinsurance. The defendants are not to be subjected to the necessity of making a claim on this account against the assets in the receiver’s hands, for the reason that under, the provision of the statute it cannot be included in the amount recovered against them.

Its inclusion would render the recovery more than the loss actually sustained, and that the statute has not permitted.

The plaintiff, as receiver, represents all the creditors, and all other persons interested in any form, in the assets of the company, and he was the proper person to prosecute the present action. The case was rightly disposed of, except as to the extent of the recovery, and to rectify the error in that respect the judgment' should be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff can and will stipulate to deduct such sum from the recovery as will limit it to the actual loss sustained. If that shall be done, and a stipulation given to that effect within twenty days after notice of the decision, then, as so modified, the judgment should be affirmed, without costs of the appeal.

Davis, J.:

I concur. It should be indicated in the order that the amount to be deducted under the stipulation, is the sum which the receiver would have been obliged to pay to the holders of policies under which losses have been sustained and paid, and not the whole amount of such losses.

Beady, J., concurs.

Judgment reversed, new trial ordered, costs to abide event, unless plaintiff can and will stipulate to deduct such sum from the recovery, as will limit it to the actual loss sustained. If that shall be done, and a stipulation given to that effect within twenty days after notice of the decision, then, as so modified, judgment affirmed, without costs of appeal.


author: Buady, J.

text:
    WILLIAM J. PECK, Survivor, etc., Respondent, v. JOHN M. GARDNER and JEROME B. WEIANT, Appellants.

      Oontraet — execution of , by agent — - “ A. J. L., agent for G-. é W.” — binds agent, not principal.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages for the breach of an alleged executory contract, by which the defendants agreed to sell and deliver certain brick to the plaintiff. Upon the trial a paper purporting to give the terms of the contract was produced, which was made “between Albert G. Lawson, agent of John M. Gardner, and Jerome Weiant, brick manufacturers of Haverstraw, Rockland county, State of New York, party of the first part, and the firm of William J. & J. S. Peck, of the city of New York,” and executed as follows:
    “ ALBERT J. LAWSON, [l. s.]
    “Agent for Gardner & Weiant.
    “ WM. J. & J. S. PECK.” [l. b.]
    ■ The defendants’ counsel objected to the reception of this paper in evidence, on the ground that it was not properly executed to charge the principal. The court admitted the evidence, and the judge, in his charge to the jury authorized them to determine whether it was executed in such a way as to entitle it to be read in evidence, and said that if so executed, then it would be necessary to decide whether Lawson was authorized to sign it.
    With reference to this, the court at General Term said: “ There was no dispute about the manner of the execution. It was patent on the face of the paper. This was about the extent of Lawson’s authority, doubtless. The submission of the question stated to the jury was erroneous. It was not for them, but for the court to determine it, and the adjudications on the subject establish the proposition that an agreement executed as that was, becomes that of the agent, and is not that of the principal. (Townsend v. Corning, 23 Wend., 435; Spencer v. Field, 10 id., 88; Stone v. Wood, 7 Cow., 454; Bogwrt v. De Bussey, 6 J ohns., 94; Sherman v. N. Y. C. B. B. Co., 22 Barb., 239; De Witt v. Walton, 5 Seld., 571.)”

      C. P. Hoffman for the appellants. J. S. Lawrence for the respondent.
   Opinion by

Buady, J.

Davis, P. J., and Daniels, J., agreed in the result.

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


author: DaNIels, J.

text:
    SOLOMON BARNETT, Respondent, v. MEYER BENJAMIN, Appellant.

      Money summons and complaint for tort — variance between — when disregarded— appeal — order of ae-rest.

    Appeal from an order denying a motion to vacate an order of arrest, and to strike out the allegations of fraud contained in the complaint served in this action.
    The action was commenced on the 21st of March, 1876, by the service of a summons for money. On the twenty-second of March an order of arrest was granted upon affidavit, and on the twenty-sixth of April the complaint was served.
    As regards the motion to set aside the complaint and strike out all the allegations of fraud therein contained, made on the ground that the summons was on contract and the complaint in tort, the court at General Term said: “ It has been claimed that the allegations inserted in the complaint alleging the commission of the fraud were irrelevant, and should have been stricken out because the notice contained in the summons stated that the judgment would be taken for the amount of the debt if the defendant failed to answer. To justify the service of a complaint in the form in which it has been made, it has been urged that the summons should have contained a notice that the plaintiff would apply to the court for relief if the defendant failed to answer. It is not necessary to decide whether this point has been well taken or not for the purpose of disposing of the present appeal; for, even if the defendant should be right in this position, he was not máte-rially injured in any one of his rights by the insertion of a different notice in the summons. If the plaintiff had taken judgment without applying for the relief proper in the case, then the defendant might have just reason to complain, if such an application should be held to be necessary. But by the mere service of a complaint, on which judgment could not regularly be taken without an application to the court, no substantial right of the defendant can be injured or affected, even if the summons stated that judgment in case of default would be taken for the debt, as a matter of course. For that reason no appeal can properly be taken from the order denying the motion, made to strike the allegation of fraud out of the complaint. (McOoun v. W. Y. O. R. R. Go., 50 N. Y., 176.)”

      John H. Ola/yton, for the appellant. N. A. Halbert, for the respondent.
   Opinion by

DaNIels, J.

Davis, P. J., and Beady. J., concurred.

Appeal dismissed as to so much of the order as denies motion to strike out the allegations of fraud from the complaint, and order affirmed so far as it denied motion to 'vacate order of arrest, with ten dollars costs, besides disbursements.