author: Gray, J.

text:
    Frances E. Williams, Resp’t, v. The United States Mutual Accident Ass’n of the City of New York, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

      1. Insurance (Accident)—Voluntary exposure to danger.
    Deceased, a book peddler, was walking on Church street, Saratoga, through which a railroad runs, and when 100 feet from the track he met two Germans, to whom he said, “Boys, look out for the engine, may be he will catch you." One of them replied, " I’m not afraid; my life is insured.” A train was at the time approaching, and they continued on their way. Deceased turned and retraced his steps, and when the engine was within twenty-five feet of the crossing he “ squatted down.” upon the track, and although the engineer reversed his engine, he was struck by the pilot of the engine. Held, that there was no evidence that the death of assured was caused by accident. It was a case of voluntary exposure to unnecessary danger-without a relevant fact to change the aspect of it.
    3. Same.
    It was error to leave it to the jury to pronounce whether the acts of the deceased were with suicidal intent, or whether he was not at the time excusably engaged in an endeavor to follow the Germans and save them from any possible injury by the approaching train, there being no evidence of inebriation in them, except their own testimony that they had taken one- or more drinks.
    (Finch and Maynabd, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon verdict and order denying motion for new trial upon the minutes of the judge.

      Richard L. Hand and Winsor B. French, for app’lt; Edgar Tl Brackett, for resp’t.

       Reversing 38 St. Rep., 378.

   Gray, J.

The present action was brought to recover the amount of insurance in a policy issued by the defendant, wherein it was agreed that the sum of $5,000 should be paid to the plaintiff, the wife of an insured member, if death should result to him from bodily injuries effected through external, violent and accidental means. The policy provided, however, that its issuance and acceptance were subject to certain conditions ; among which were the following, namely; that the insurance should not “extend to or cover * * * suicide, felonious or otherwise, sane or insane ; * * . * voluntary exposure to unnecessary danger, etc.”' The assured was struck by an engine and died shortly afterwards from the effects of his injuries. The circumstances of the occurrence were undisputed. The deceased was by occupation a book peddler- and lived at Saratoga Springs. Upon an evening in the latter part of November, 1890, he was walking and crossed from the west side of the railroad, at Church street, where the line of the road runs northerly and southerly, and continued, from the track, eastwardly along Church street. When about one hundred feet from the track he met with two Germans; one of whom testified that they were addressed with the remark, “ Boys, look out for the engine, may be he will catch you.” One of the men replied, “ I’m not afraid, my life is insured.” A train was at the time approaching in the distance. The Germans continued on their way westwardly and over the track. From what was further testified concerning the movements of the deceased, it appears that he must have turned and retraced his steps ; for the engineer of the approaching locomotive saw him coming west, towards the track, and when within a few feet of the crossing standing still. The train was moving only at about the rate of four miles an hour. The whistle was being blown and the bell rung; but, when within about twenty-five feet of the crossing, the engineer saw the man start and go upon the track. He says that if the man had kept on walking he could, in all probability, have gone across; but when upon the track he “ squatted down ” as in the position of kneeling.

The engineer, when he saw this, at once reversed his engine, and, after it had stopped, got down, went to the man andTound him lying against the pilot of the engine. Others came up, brought to the spot by the cry which the deceased uttered when struck; but the only evidence of what occurred, immediately before and at the time he was struck, was furnished by the engineer. The locality was lighted up by an electric light and the crossing ■does not appear to have been out of order. The deceased only had an umbrella in one hand and his canvassing book in the other.

Upon these facts the plaintiff, respondent here, insisted and insists that it was for the jury to pronounce whether the acts of the deceased were with suicidal intent, or whether he was not .at the time excusably engaged in an endeavor to follow the Germans and to save them from possible injury by the approaching train. The plaintiff’s counsel argues that there was room for an inference that these Germans were inebriated and that their condition had provoked the deceased to follow and to observe them, with the intention to interfere in their behalf if threatened with danger. But the difficulty is that there was no evidence of inebriation in the Germans and nothing more than their testimony that at the close of their day’s work they had taken one or more drinks. They had gotten beyond the track and there was nothing calling upon the deceased to incur jeopardy in their behalf. The theory rests upon the merest speculation and is without support in a single fact in evidence. The defendant could not be charged with any obligation under its contract, unless there were facts disclosed by the evidence which would permit an inference by the jury that such an accident had occurred as would bring the case within an admitted liability of the insurer. The respondent argues that because the evidence relating to the condition in life •of the assured, to his character, his temperament and his' mental soundness, was such as to negative the idea of the existence of a motive to destroy his life and a theory was furnished to account sufficiently for the exposure of his life to the imminent danger, the case was not one where the court should either presume a suicidal intent, or impute negligence in the preservation of life; and that it was the province of the jury to draw the proper inferences and to decide the question of liability upon all the circumstances.

The argument would be unanswerable in a case where the facts were disputed, and any at all existed from which an inference ■ was possible that there was a reasonable or excusable cause for-the occurrence. In the present case there is no dispute as to how the accident occurred; nor as to the conduct of the deceased which permitted it There is not a fact in evidence which explains the possibility of such an occurrence other than through the voluntary action of the individual, unless, upon the solitary fact that the two Germans whom he met with had taken one or more drinks, and. were in the habit of occasionally drinking, the mind might be permitted to erect the fabric of a case of a more or less helpless state of inebriation upon this occasion; the perception of such a state by the deceased; an anxiety and an endeavor to avert a peril to them, and his own loss of life in consequence. That would be going too far. Mental speculation and guess work cannot be permitted to supply the facts as the basis for a liability in such a case. As the ■ case appears from the record before us, there was no evidence that the death of the assured was the result of an accident in the proper and usual acceptation of that term. "When seen, just before the train struck him, he was at first standing away from the tack crossing, with the train about twentjr-five feet oií, and then deliberately going upon the track, .stopping and lowering his body in front of the engine. The men whom he had met and addressed had crossed and were away from the track. There was no evidence of their crossing back upon it; nor of any circumstance requiring the assured to change the position of safety in which he was as the tain was approaching the crossing. Can it be said with any semblance of reason, upon .these undisputed facts, that injury or death was not voluntarily and unnecessarily incurred, if not deliberately invited, by the assured? I do not think so. We may not be furnished with a motive; but that is not necessary. The evidence reveals an occurrence which to all appearance was deliberately contributed to, if not permitted, and, therefore, the theory of an accident is excluded. The proof would not be consistent with any such theory. It was certainly a case of voluntary exposure to unnecessary danger, without a relevant fact to change that aspect of it, and it is of no materiality whether the act is known to have been one of suicide or not.

The case should not have been submitted to the jury. The defendant was entitled to a dismissal of the complaint at the conclusion of the case, and the denial of its motion was error.

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

All concur, except Finch and Maynard, JJ., dissenting.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Charles E. Pell, Resp’t, v. Christian Bauer, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    Mechanic's lien.
    T., a carpenter, and B., a mason, made separate proposals for the work upon the house of S. which were accepted by the latter, but when the contract came to be drawn they requested that a joint contract be drawn between them and the owner, to save time and for convenience only. During the work T. bought a bill of lumber of plaintiffs, they knowing that he was a contractor building the house or that the lumber was to be used in it. When the work was done over §5,000 was due from the owner to T. -and B., against which plaintiffs filed their lien which would exhaust not only T.’s shave but a large part of that coming to B. Held, that although this was not a joint adventure of T. and B., yet as the lumber was furnished and used for the building with the assent of the owner and both contractors, and as B. availed himself of it pro'tanto in earning the contract price, -he was under the joint contract as much bound to furnish it as T. and this gave plaintiff- a right to'file his lien for the amount of his debt upon the unpaid portion of the contract price.
    Appeal from judgment, of the city court of Brooklyn, general term, affirming judgment for plaintiff rendered upon a trial before the court without a jury.

      II. M. Hi takings, for app’lt; Andreiu Shiland, Jr., for resp’t.

       Affirming 41 St. Rep., 99.

   Finch, J.

We agree with the conclusion of the general term that the 'judgment rendered upon foreclosure of the plaintiff’s lien was right, while not concurring in all respects with the reasons-assigned. Thornton and Bauer, the former a carpenter and the-latter a mason, had entered into a joint contract with Schloen to build upon his land a house for the price of nineteen thousand and fifty dollars, the work to be done according to certain specifications, and payments to be made at agreed points in its progress. As between themselves there was no agreement of partnership and no community of interest in profit or loss. The owner had called for separate proposals for the carpenter work and the mason work, in response to which Thornton had offered to do the former for $9,800, and Bauer the latter for $9,250, and these offers had been accepted by the owner. But when the contracts came to be drawn Thornton and Bauer requested that their several agreements should be merged in one joint contract as between them and the owner. This was done to save time and for convenience, and without any purpose or agreement to change their relations-with each other beyond what was necessarily involved in their becoming joint contractors. They could become such without being pártners or establishing through that relation an authority by which one could primarily bind the other. Alger v. Raymond, 7 Bosw., 418.

During the progress of the work Thornton bought of the plaintiffs a bill of lumber which was used in the construction of the house. Apparently they sold to him and trusted him, and may not have known, at the time, of the existence or terms of the joint contract, but they did know that Thornton was a contractor, building the house for its owner, and that the lumber was to be used for that construction. In the end, when the work was done, something over $55,000 remained due from the owner to the contractors, which he stands ready to pay to the parties entitled, but the plaintiffs have filed a lien as sub-contractors, and it turns out, that in order to pay them not' only is the separate amount coming '-to Thornton exhausted, but a very serious part of that coming to-Bauer is also required, and the latter resists the foreclosure to-that extent, claiming that he is not bound to make good Thornton’s contract

We cannot join with the general term in saying that the two-contractors in the joint adventure were partners, or held themselves out to the plaintiffs as such. It may be that even if Thornton had no primary right to bind Bauer upon the lumber purchase upon the principles of agency which underlie a partnership relation, yet that he became liable upon the ground of ratification ; that having accepted the lumber and assented to its use in performance of the joint contract and availed himself of its benefit in earning the contract price, he adopted Thornton’s contract and ratified his action ; and that idea seems to pervade the-opinion below. But without going to that extent, we prefer to sustain the judgment upon the provisions of the lien law solely and alone. That law, to some extent, moves outside of the legal contract relation. It takes up an imperfect equity and regulates- and enforces it, although between sub-contractor and owner there is no agreement whatever. Proceeding upon the idea that he who furnishes material for or does labor upon a building should be reimbursed to some just extent out of the improvement of which the owner gets the benefit, it gives him a lien upon the property as security for the proper payment. All that the statute requires as the condition of the lienor’s right to such reimbursement is that the labor shall be done upon or the material furnished for the building in process of construction with the assent of the owner or of the contractors. Laws of 1885, chap. 342, § 1.

Both conditions were established in this case. The lumber was so furnished and used. It was done with the assent of both contractors. Bauer knew that it was supplied for use in the performance of the joint contract; saw it so used not only without objection but availing himself of it pro tanto in earning the contract price; consciously took the benefit wAich it conferred; and so .assented to its supply. Under the joint contract and relatively to the right of the owner, Bauer was as much bound to furnish it as Thornton, and might have been obliged to furnish it himself if Thornton had not. It is, therefore, impossible to deny that the plaintiffs furnished the lumber used in construction and applied in the due performance of the joint contract with the assent of the contractors, not merely of one but of both, and so the conditions -existed which under the law gave the sub-contractor a lien for the amount of his debt upon the unpaid portion of the contract price. If, as a consequence, Bauer suffers for Thornton’s default, that is the consequence of his joint contract and of the position in which he suffered himself to be placed. We are, therefore, of -opinion that the judgment should be affirmed, with costs.

All concur.


text:
    Elizabeth J. Haynes, Resp’t, v. Elizabeth W. Aldrich, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Landlord and tenant—Holding over.
    The rule that where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for a year upon the terms of the prior lease, at the option of the landlord, is not affected by the fact that the tenant holds over involuntarily and not for his own convenience, but because he cannot help it.
    2. Saids.
    Defendant’s lease ended, by its terms, on May 1, and provided that the premises should he occupied as a private dwelling and not sublet without the written consent of the lessor. Defendant sublet the premises to C., who occupied them as a boarding house, and one of her boarders was a chronic invalid. The first of May was a holiday, but the keys were retained on the plea that there was difficulty on the 2d in engaging trucks; that the removal began on the 3d, but the sick boarder could not be moved with safety until the 4th. Held, that this constituted no excuse for the holding over.
    3. Same—Re-entry by landlord.
    When the keys were tendered they were refused. On the 4tlx of May the lessor found the house deserted and the windows open. Under the lease plaintiff had a right to re-enter and relet as the agent of her tenant. A policeman entered through the open window. The premises were-somewhat damaged and the lessor had some painting and plumbing done, and tried to rent the house, .but failed. Held, that there was a clear refusal to accept the surrender offered and that the repairs were consistent with that position and the right reserved in the lease.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered on verdict directed by the trial judge in favor of plaintiff.

      Henry G. Ward, for app’lt; Stephen H. Olin, for resp’t.

       Affirming 39 St. Rep., 988.

   Finch, J.

Judgmentas ordered against the defendant upon the trial of this action for rent accrued after the expiration of her original lease, upon the ground that by holding over after such expiration she became a tenant for another year upon the-terms of the prior written lease. The facts disclosed were that such lease ended by its terms on May 1, 1889 ; that it contained a provision that the premises should be occupied as a private dwelling' and a covenant not to sub-let without the written consent of the lessor. Both stipulations were violated. The tenant, without permission, rented the premises to Mrs. Coventry, who-occupied them as a boarding house, and received as one of her boarders a lady who was a chronic invalid and continuously ill. On the 4th of February, 1889, the lessor inquired of the lessee whether she desired to renew her lease for another year, and was informed that she did not. The 1st day of May was a holiday, and doubtless the tenant had until noon of the next day for a surrender of possession. But the possession was retained by the tenant until the afternoon of May 4th, when the keys were tendered, but refused. The excuse given is that on the 2d day of" May there was difficulty in engaging trucks, that the removal began on the 3d, but the sick boarder could not then be moved with safety, and was not moved until the 4th.

This court held in Commissioners of Pilots v. Clark, 33 N. Y.,, 251, that the rule is too well settled to be disputed that where a tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior ■ lease; that the option to so regard it is with the landlord and not with the tenant; and that the latter holds over his term at his peril. In Conway v. Starkweather, 1 Den., 114, the tenant had notified the landlord of his intention not to remain for another year, as was the fact in the present case, but nevertheless did hold over for a fortnight, and the fact of the notice was held to be immaterial, the court saying: “The act of the plaintiff in holding over has given the defendants a legal right to treat him as tenant and it is not in his power to throw off that character, however onerous it may be.”

The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only where the tenant holds over voluntarily and for his own convenience that the landlord’s right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannot help it. I am averse to any such qualification. It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury; and no lessor would ever know when he could safely promise possession to a new tenant. The cases cited by the appellant do not bear out his contention. In Smith v. Allt, 7 Daly, 492, the holding over was in part the act and assent of the landlord and occasioned by pending negotiations, and could not have been said to be the sole act of the tenant. In Shanahan v. Shanahan, 55 Supr. Ct., 344; 14 St. Rep., 732, it appeared that the 1st of May was Sunday, that the tenant began to move on the afternoon of the 2d, that the removal continued during the 3rd, and for that reason the tenant was held liable. The court did interject the remark that there was no unavoidable delay in moving, but without seeking to change or modify the rule.

In McCabe v. Evers, 30 St. Rep., 833, decided in 1890, in the Hew York city court, it appeared that the tenant moved out on the first of May, but left behind him an old stove and some rubbish and tendered the key on the second of May. The court held that the evidence of a holding over was inconclusive and ambiguous and the question should have been submitted to the jury. In Manly v. Clemens, decided by the same court, 39 St Rep, 199, the term expired on February second, at noon, the tenant began his removal in the morning and worked till mid-night. There was a verdict against the landlord which the court refused to set aside

These cases, even if regarded in all respects as correctly decided, fall very far short of establishing the appellant’s doctrine or justifying a reversal in the .present case. There is no question here about the fact of a holding over, and no question therefore in that regard for the solution of a jury. The tenant remained in possession voluntarily, for her own convenience and that of her sick boarder. If it was unsafe to remove the latter the situation was wholly the fault of the tenant who sets up as an excuse for one violation of the lessor’s rights the consequences of her own earlier violation of the terms of the lease. Ho impossibility of removal was shown, merely difficulty and inconvenience which should have been and might have been foreseen and provided against If the rule in this case seems to involve a hardship, that is sometimes true of every general rule however just and wise, but does not justify its abrogation. To sustain this defense would open the door to a destruction of the settled doctrine and tend to involve the rights of both lessor and lessee in uncertainty and confusion.

I do not mean to say that whether there has been a holding over at all may not sometimes be so doubtful upon the facts as to require a submission to the jury. I mean to say that there is no such doubt in the present case. I reserve the question also whether there might not be an unavoidable delay in no manner the fault of the tenant directly or indirectly which would serve as a valid excuse. It is enough that here was a holding over not unavoidable, which might have been provided against, and where the chief difficulty grew directly out of the tenant’s own wrongful act.

It is claimed, however, that the further question whether the lessor exercised the permitted option or took possession in her own right should have been submitted to-the jury. I think the facts admit of but one inference. The lessor did exercise her option, and that promptly and clearly. When the keys were tendered to her mother they were refused. In the afternoon of May 4th the lessor went to the house to see what was occurring. She found it deserted and the windows open. Her property needed protection. Under the lease she had a right to enter and re-let- it as the agent of the tenant. A policemen entered through the open window. Some keys were found on the mantel and thereafter used, but evidently not all, for others were restored much later. The premises were somewhat damaged, and the lessor had a little painting and some plumbing done, amounting only to ordinary and needed repairs She tried to rent the house, but failed, and went to Europe during the summer and occupied the . house in the fall, under a stipulation which expressly reserved her existing rights Upon these facts no inference was justified except that drawn by the court. There was a clear refusal to accept the surrender offered, and the repairs were consistent with that position and with the right reserved in the lease.

We think the judgment was correct and should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Edward B. Babcock, App’lt, v. The Schuylkill & Lehigh Valley R. R. Co., Resp’t.

      (Court of Appeals,

      Filed May 24, 1892.)

    Corporations—Railroad—Stockholders—Consolidation—Exchange of CERTIFICATE.
    Plaintiff subscribed for 2,100 shares of the capital stock of the P. & N. Y. Railroad. Thereafter it was consolidated with defendant under an agreement that the stockholders of the former company were to receive tfie consolidated stock in place of that held by them. Held, that the fact that the plaintiff agreed in 1882 to purchase and pay for his shares did not necessarily prove that he had any interest in the company in 1888, unless there is e, presumption that his relation to the company continued, and he was net entitled to receive paid up consolidated stock where there was no finding or proof that he ever paid anything hut the ten per cent.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing plaintiff’s complaint

      Thomas 0, Shearman, for app’lt; Benjamin S. Harmon, for resp’t.

       Affirming! 39 St. Rup., 506.

   O’Brien, J.

In the certificate of incorporation of the Potts-

ville and New York Railroad Company, a corporation organized under the laws of Pennsylvania on the 23rd of March, 1882, the plaintiff’s name appears as a subscriber for 2,100 shares of the capital stock of the par value of fifty dollars per share. Attached to the certified copy of the articles of association appearing in the record is ail affidavit of three- of the directors to the effect that ten per centum upon the total amount of stock subscribed had been paid in. This is the only evidence in the case that the plaintiff was or continued to be a shareholder as no certificate or other evidence of his right as such shareholder, was ever issued to him or any of the other persons who signed the subscription paper. In the month of February, 1887, about five years after this subscription, the Pottsville company, under a statute of Pennsylvania, merged and consolidated its franchises and capital stock with the defendant, another railroad corporation of that state. Its capital was fixed at 40,000 shares of the par value of fifty dollars per share.

The merger or consolidation agreement made between the two corporations in conformity with the statute provided that each stockholder in the Pottsville company should, upon surrendering to the treasurer of the consolidated company any evidence he might possess by certificate or otherwise of his right to stock, if he had any such evidence, and if no such evidence had been issued to him,- then upon due demand being made upon the treasurer, should be entitled to receive from him a certificate of the capital stock of the consolidated company in the proportion of two shares in face value of the Pottsville company for one share of the same value in the consolidated company. The plaintiff brought this action to compel the delivery to him of this certificate, alleging that he was a shareholder m the Pottsville company and had demanded the certificate from the treasurer of the defendant, who> refused the same. These allegations were substantially denied in the answer.

The precise relief demanded in the complaint is that the defendant issue to the plaintiff a certificate for 1,050 shares of its capital stock of the par value of fifty dollars each, and that in case of the failure of the defendant to issue the same, then that the defendant pay to the plaintiff the sum of $52,500 damages. The trial court dismissed the complaint and' the general term has affirmed the judgment It is not necessary to hold, and we do not hold, that a person who has subscribed for the stock of a corporation, and thus has become bound to receive and to pay for the same, is not, in some sense, a stockholder. We see no reason to doubt that a person so situated sustains the relation of a stockholder, at least, in many respects, both to the corporation and its creditors. Van Alen v. Ill. Cent. R., 4 Abb. Ct. App. Dec., 443; Curry v. Scott, 54 Penn. St, 270; Rutter v. Kilpatrick, 63 N. Y., 604 ; Buffalo & N. Y. C. R. Co. v. Dudley, 14 id., 336-346; Spear v. Crawford, 14 Wend., 20. But we agree with the court below that the plaintiff did not make out a case for the relief asked. He did not even prove that he had ever demanded the certificate or any other evidence of his right from the defendant The allegation of the complaint that such demand was made is denied in the answer. True, the other allegation that there was a refusal is not denied, but if there was no demand there could not well be a refusal. On any fair construction of the pleadings the plaintiff was bound to prove the demand. It is true, as is urged by the learned counsel for the plaintiff, that the absence of proof of a demand is not generally regarded as an insuperable'obstacle to relief in a court of equity in a proper case, and possibly this point might be overlooked here if the case xvas established in other respects. The only proof that the plaintiff gave of any interest in the Pottsville Company xvas the subscription paper signed some six years before. The fact that the plaintiff agreed in 1882 to purchase and pay for twenty-one hundred shares did not necessarily prove that he had any interest in the company in 1888, unless there is a presumption that his relations to the company continued. However that may be, it is clear that he could not maintain any action against the defendant that he could not maintain against the Pottsville company' before the consolidation.

What he asks is the issue to him of ten hundred and fifty shares of paid up stock, and there is no finding or proof that he ever paid anything but the ten per cent Nothing xvould seem to be plainer than that the plaintiff is not entitled to negotiable or transferable certificates of full paid stock on such a State of facts and yet the plaintiff m his complaint and at the trial did not ask for anything less. If the plaintiff still retains the interest in the Pottsville company represented by the subscription and the payment of the ten per cent on the same it is quite likely that a court of equity would be disposed to compel the defendant to deliver to him some proper evidence of this right. But we have no right to reverse the judgment for the purpose of enabling the plaintiff to procure a measure of relief that he did not ask either in his complaint or at the trial.

The judgment should be affirmed, with costs.

All concur.


text:
    The People, App’lts, v. Joseph Barondess, Resp’t.

      (Court of Appeals,

      Filed May 24, 1892.)

    Extortion—Penal Code, § 550.
    Defendant as president of the Laborers’ Union obtained from the firm of P. & M. $100 under a threat that otherwise their employees would not return to work after a strike. Held, that this was a threat to do an unlawful injury and constituted a crime under § 553 of the Penal Code.
    (Gray, O’Brien and Maynard, JJ., dissents.)
    Appeal from judgment of the supreme court, general term, first department, reversing judgment of the court of oyer and terminer, convicting defendant of the crime of extortion.
    The facts appear in the opinion.

      Henry B, B. Stapler, for app’lts; Benjamin Sieinnart, for resp’t.
    Order reversed, and judgment of conviction affirmed, on opinion of Daniels, J., beloxv.

       Reversing- 41 St. Rep., 659.

   Gray, J.

(dissenting).—The defendant was charged, in the language of this indictment, with the crime of extortion, in having obtained a check for $100 from Popkin & Marks, xvith their consent, through a wrongful use of fear, induced by a threat made to do an unlawful injury to their property, that is to say, to injure and destroy their business, and to prevent and hinder them from carrying on the same.

Section 553 of the Penal Code provides that “ Fear, such as will constitute extortion, may be induced by a threat,

1. To do an unlawful injury to the person or property of the individual threatened, etc., etc.”

The facts, in evidence upon the trial, upon which the prosecution relied, can be sufficiently stated within a brief compass. Pop-kin & Marks were a firm of cloak manufacturers in Mew York city, employing a number of workmen in their business, who were connected with a laborers’ union. For some time prior to February 9, 1891, the firm had had disputes with their workmen, concerning the terms and conditions of their employment, and at one time non-union persons were employed. The defendant was the president or manager of the laborers’ union, and represented these workmen in treating with the firm. On February 9, 1891, an arrangement between the firm and a committee of the workmen was reached, under which the- non-union men were to be discharged, and the former workmen of the firm were to resume work the next morning, on terms of service agreed upon. The next day the workmen did not returnvto work; but, during the morning the defendant called, accompanied by the committee of the workmen, and demanded that the firm should first sett'e with him. He stated to the firm that they would have to pay him $500 to have their people back again to work. Popkin demurred to this demand. Defendant then reduced the demand to $300, and said if that was not paid the firm could not have their people back again to work. Popkin again refused, and defendant, with his companions, thereupon left the premises.

Subsequently, one Zipkin, of the workmen’s committee, returned and saw Marks, the other partner, and between them it was arranged that $100 should be paid. Zipkin went out and brought back the defendant and others. The defendant said he would accept the $100, and it was paid to him by a check, upon which he received the money. The demand for the money was with the knowledge and support of the workmen, and defendant testified that he had told Popkin that the money demanded was for distribution among the workmen; the explanation being given that it was to compensate for lost time. After the conviction of the defendant, Presiding Justice Van Brunt, of the general term of the first department, before whom the defendant had been tried at the oyer and terminer, certified that in his opinion there was reasonable doubt whether the conviction should stand, and admitted the defendant to bail, pending his appeal. At the general term Justices Barrett and Ingraham concurred in ordering a reversal of the judgment of conviction for errors of law. Opinions were delivered by each of the justices, in which two grounds are stated upon which they deemed the conviction to have been unwarranted in law. They held that, as a threat to injure the business or estate of the complainant, it was not a criminal offense within the meaning or definition of the Penal Code. The argument for this conelusion was that a threat to injure the business of another, that is, to reduce, or to prevent the making of gains, operated not upon some specific and tangible thing, but upon invisible and non-objective property, the existence of which would have to be proved by independent evidence. Such an injury threatened to business would be actionable under the Civil Code, which defines an injury to property as an act whereby the estate of another is lessened; but that definition is absent from the Penal Code, and because of its omission, and of the definition of property given in the Penal Code, it must be supposed that the legislature intended to limit indictable, wrongs to injuries done to personal property as such property is defined by the Penal Code. It was considered that the statute does not deal with such possibilities or probabilities as are involved in a mere threat to injure business ; but contemplates the punishment of acts which menace directly material and specific property, and in the same way that the person could be menaced with injury.

The reasoning of the learned justices upon this question of the construction of the statute is able and not without much that is forcible and, perhaps, difficult of ready refutation, but, in our view, is not altogether conclusive. I do not think that we should so restrict the meaning of the term “property ” in the section as to confine its application only to specific or visible objects. The absence in the Penal Code of that broader definition in the Civil Code is not of such significance as to control, or to have such force as to impair the protection which the statute would extend to and about property of persons if that word were allowed that full and comprehensive legal meaning which it has long received. In its general sense, the personal property of an individual is understood to include what is intangible, such as choses in action, and all subjects of property, not of a freehold nature, as well as tangible, physical objects. 2 Kent, 340.

To carry on a lawful business or trade is but the practical exercise of that right to the free use and acquisition of property which is secured to all by the constitution, and any interference with such a right by unlawful means should be deemed an unlawful injury to property.

We are not inclined to go with the learned justices below as far as their reasoning has led them upon the subject of what property is afforded protection from injury under' this section. We think that if here there was a threat to do some unlawful injury to the complainant’s business, it involved the subject of property, and the conviction would have been proper. But the judgment of the general term does not depend for its maintenance upon the correctness of the view taken as to what “property ” comprehends as used in the section. The further ground taken by them in reversing the conviction is, I think, one that is impregnable. Assuming that property was in fact the subject of possible injury, was the threat one to do an unlawful injury? The question requires us to say whether the remark, or threat, of defendant induced the fear of consequences from an act which, for involving something forbidden in, or provided against by, the Penal law, would be unlawful. That a civil action would lie within the provisions of the Civil Code and at the common law, at the suit of one against him who has interfered between the complainant and those employed by or under contract with him, so as to cause actual damage to the business or estate of the complainant, may be conceded.

The cases cited by the district attorney are those where such civil actions were brought and maintained. But to be punishable under the Penal Code, the act of the defendant must be shown to be one which constitutes a crime; and a crime is defined by the Codeas “ an act or omission forbidden by law.” Therefore, unless the defendant committed, or threatened to commit, an act forbidden by law, he cannot be said to have rendered himself amenable to punishment at the suit of the People. He did not threaten to do anything, personally, to the firm of Poplcin & Marks ; but, simply made the statement, or threat, in effect, that, unless his demand was complied with, their men would not return to work. There was no attitude of intimidation assumed by defendant or by the workmen towards the firm, other than was presented by this demand for a payment of money. There is no evidence that the workmen were or had been under any contract with Poplcin & Marks which was to be broken by defendant’s procurement It cannot be said, with any degree of correctness, that they were not at liberty to stand out for such terms and upon such conditions as to re-employment as they chose to demand. There is no question of a conspiracy; for, as pointed out by Judge Barrett, an orderly and peaceable assembling, or co-operation, of persons employed in any trade, etc., for the purpose of obtaining an ad-' vanee in wages, or compensation, is excepted by § 170 of the Penal Code from the definitions of conspiracies cognizable by it. If there was nothing unlawful, therefore, in the refusal of the w'drkmen to return to work for their former employers, or in their co-operation to secure that return upon their own terms, how can the statement, or threat, of the defendant be deemed to be one to do an unlawful injury ? He was the representative of the workmen and, according to his testimony, in preferring the demand for a payment of the $100, was acting for the workmen. Certainly, we must assume his demand to have been authorized by them. Upon the evidence in this record the whole effect which could be claimed for this threat of the defendant would be that, unless there was paid to him the sum stated, he would advise the former workmen not to go back to work. That was in effect, and at roost, a threat to use his influence over the men. But if so, then what was the influence to accomplish? Nothing more, certainly, than that those particular men would continue their attitude of refusal to re-enter the employment of Poplcin & Marks; an attitude of co-operation, which was voluntary with them and was not contrary to, or forbidden by, any law.

The distinction, which I think is not to be lost sight of, consists in this, that however reprehensible and morally offensive the conduct of the defendant and of the workmen was, the attitude of the workmen in holding out until there was compliance with their further demands was not unlawful, as being something reprehended or forbidden by the law; and, therefore, for the defendant to threaten that that attitude would continue, unless the demand preferred by him was met, was not to do an act leading to any unlawful injury. As pointed out by Justice Ingraham, there are many ways in which a person, in the exercise of a strictly legal right, could cause injury to the property of another without entailing any penalty or liability thereby.

If the attitude of the former workmen in refusing to re-enter their employment was not an act condemned by the statute, it could not be a criminal act for the defendant, as their representative, to threaten that .he would advise, or cause, its continuance. If they had the right to agree to stand out for their terms, the defendant ought not to be punished for representing that they would do so, even if through his influence.

In my opinion, assuming all that the prosecution claims, there was here no commission of an act cognizable by the criminal law as an offense, subjecting the person to punishment, and, if none, then the court should not have held the defendant. That we should condemn the act of the defendant as highly offensive, speaking morally, is natural and just; but courts must administer the law as it is written in the statute, and they should not mete out punishment where none has been plainly provided for. In courts of justice the law should protect all against a condemnation which is not prescribed for the act proved. For us to hold that the defendant’s conviction was justified by evidence establishing the commission of an act forbidden by the law, Í think will require us to stretch unduly these provisions of the Penal Code. Such a result might satisfy the moral sense; but that is not what this court sits to accomplish.

For the reasons given the order appealed from should be affirmed.

Order of general term reversed and judgment of conviction affirmed on opinion of Daniels, J., below.

Earl, Oh. J., Andrews, Finch and Peckham, JJ., concur; Gray, J., reads for affirmance of general term; O’Brien and Maynard, JJ., concur.


author: Maynard, J.

text:
    Mary T. Constant et al., Ex’rs, Resp’ts, v. The University of Rochester, Impleaded, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    Principal and agent—When principal bound by knowledge op agent —Evidence.
    Upon a former trial of this case it was held that the evidence was not sufficient to show that the defendant had knowledge through its attorney D. of an unrecorded builder’s mortgage given to plaintiff’s testator prior to the execution of one to defendant, and recorded by said attorney. On the present trial the only additional testimony was given by S., one of plaintiff’s attorneys in this action; who swore that after plaintiff’s mortgage had been executed it had been kept in a box of unrecorded mortgages in the law office of D. ’& 0., of which firm S. was then a member; that this was done by D.’s direction, and that frequently the mortgages would be gone over and D. would indicate whether they should be recorded and plaintiff’s mortgage was always included in those left unrecorded. That alter defendant’s mortgage had been executed, he, S., called D.’s attention to plaintiff’s mortgage and D. said it was not to be recorded but directed witness to record defendant’s mortgage, which was done and thereafter by D.’s orders he drew a statement to the mortgagor that the proceeds of the second mortgage had been partly used to satisfy the first; there was also other evidence showing that D. considered the unrecorded mortgage paid off in the deal; that he as attorney for the mortgagee retained an amount in his hands sufficient to pay it, etc., but which through subsequent misfortune he lost. Held, that there was no sufficient pi oaf to sustain a finding that D. knew or believed that such mortgage was an existing and valid lien upon the premises, which had not been in any manner satisfied.
    (Andrews, Gray and O’Brien, JJ., dissent.)
    Appeal-from judgment of the New York superior court, general term, affirming judgment in favor of plaintiffs.

      Martin ■ W. Cooke, for app’lt; John JS. Parsons, for resp’ts.

       Reversing 41 St. Rep., 955.

   Maynard, J.

The prior unrecorded mortgage of plaintiffs’ testator is declared by statute to be void as against the defendant, whose subsequent mortgage was first duly recorded, provided it was a purchaser in good faith and for a valuable consideration. 4 R. S., 8th ed., 2469, § 1. Upon a former appeal in this case it was held that the defendant was a mortgagee for a valuable consideration. Constant v. University, 111 N. Y., 607; 20 St. Rep., 211. The evidence upon that subject in the present record is not materially changed, and the decision there made must control the disposition of that question upon this review. But the good faith of defendant’s purchase is sharply assailed, and upon tliat issue the plaintiffs have succeeded in the courts below. When the case was here before, that question also received elaborate consideration, and the opinion of the court embodies an exhaustive examination of the facts and of the law applicable to them. For the purposes of this decision, it is only necessary to re-state the legal propositions then enunciated. It is sought to destroy the ■defendant’s character, as a purchaser in good faith, by showing that one Deane, who acted as its agent in procuring the execution •of its mortgage, was, likewise the agent of Constant, the' plaint-i ffs’ testator, and as such agent had also procured the execution ■of the plaintiffs’ mortgage some eleven months previously, and had retained it in his possession, and must have known of its existence when the defendant’s mortgage was executed. It is insisted that this knowledge, thus acquired while acting as the agent for another principal, is imputable to the defendant, and deprives it of the benefit to which it would otherwise be entitled under the recording act.

Upon this point this court upon the former appeal, after reviewing the uncontradicted facts, say (p. 613): “ All these facts would tend to show very strongly that Deane had no recollection whatever of the existence of the Constant mortgage as an existing lien at the time he took the mortgage to the university. But the burden is upon the plaintiffs to prove clearly, and beyond, question, that he did, and it is not upon the defendant to show that he did not have such recollection. And we think there is a-total lack of evidence in the case- which would sustain the finding that Deane had the least recollection on the subject at the time of the execution of the University mortgage. Under such, circumstances we think it impossible to impute notice to the University, or knowledge in regard to a fact which is not proved to have been possessed by its agent. If such knowledge did not exist in Deane at the time o£ his taking the mortgage to the University, then the latter is a bona fide mortgagee for value, and its mortgage should he regarded as a prior lien to- that of the unrecorded mortgage of Constant, which is prior in point of date. The plaintiffs are hound to show by clear and satisfactory evidence that when this mortgage to the University was taken by Deane, he then had knowledge, and the fact was then present to his mind, not only that he had taken a mortgage to Constant eleven months prior thereto on the same premises, which had not been recorded, but that such mortgage was an existing and valid lien upon the premises which had not been in any manner satisfied.”

We have, therefore, only to consider whether this failure of proof upon the first trial has been wholly overcome by the evidence given upon the last trial. A careful comparison of both records discloses the fact that the only additional testimony of any importance was given by the witness Squires, who was a member of the law firm of Deane & Chamberlain, and who is one of the attorneys for the plaintiffs in the prosecution of this suit. The transaction which he narrates, and upon which the plaintiffs especially rely, took place after the defendant’s mortgage had been executed and returned to the firm, and had reference to the transmission of the mortgages to the register’s office for record.

He testified that after the execution of plaintiffs’ mortgage it had been kept in the box of unrecorded mortgages by the direction of Deane, and that frequently, when there was a lull in the business of the office, and as often as three or four times a month, the contents of this box would be gone over, and as the mortgages were taken'up, one by one, Deane would indicate whether they should be recorded or not, and that the plaintiffs’ mortgage was always included in the package so examined and among those left unrecorded; and that upon January 11, 1884, after the defendant’s mortgage had been executed and returned to his possession, he again called Deane’s attention to the plaintiffs’ mortgage, and asked, him whether it should be recorded or not. Deane replied in the negative, and directed the defendant’s mortgage to be recorded, which was done on the same day. At the same time he prepared, under the direction of Deane, for the use and information of the mortgagor, a statement showing what disposition had been made of the sum of $9,000, the loan of which was the consideration of the defendant’s mortgage. This statement shows that $6,325 was used for the satisfaction of the plaintiffs’ mortgage and interest; $198.50 for fees-and commissions, including $3 for drawing a satisfaction piece of plaintiffs’ mortgage and $1 for filing, and that the balance of $2,476.50 was credited to the taortgagor upon an account which she had with Deane.

There can be no question that this occurred after the defendant’s mortgage had been executed and its rights as a mortgagee had become fixed. Squires so testifies upon his direct examination, and, in response to an inquiry by the trial court, he says that the direction not to record the plaintiffs’ mortgage was given upon the same day on which the University mortgage was recorded and in connection with the question of sending the University mortgage to record. But it is not sufficient to postpone the lien of defendant’s mortgage that it received notice of the existence of plaintiffs’ unrecorded mortgage before its mortgage had been placed upon record. It could not be affected by such notice unless it came to its knowledge or that of its agent before its -mortgage was executed, or it had parted with the consideration of it Story’s Eq., § 4006, 10th ed.; Jones on Mortgages, '§ 581.

It may, however, be assumed that Deane, at the time of the execution of the defendant's mortgage, did recall the fact of the execution of the plaintiff’s mortgage, and had present knowledge of the existence of that instrument, yet, we think, there is no sufficient proof to be found in the record to sustain a finding that he knew, or belived, that such mortgage was an existing and valid lien upon the premises, which had not been in any manner satisfied. On the contrary, the evidence of Squires, when read in connection with the other proofs, not only fails to support any such finding but, when properly construed, leads to the conclusion that when Deane took the University mortgage from theMehens, he regarded the plaintiffs’ mortgage as satisfied, and had sufficient grounds for so regarding it. With respect to the situation at that time, there is no conflict in the testimony. Deane, as the agent of Mrs. Mehen, had negotiated a loan of $36,000 upon four lots on One Hundred and Seventh street, in which she had the equity of redemption. To effect this loan all prior incumbrances had to be extinguished, and among them two mortgages for $9,000 each held by the University. Deane had procured from the University satisfaction pieces of these mortgages, and on January 10th the transaction had been closed and $27,782 had been received by Mrs. Mehen in a check payable to her order, which was endorsed by her to Deane and deposited by him to his credit in a bank account kept in his name as trustee. On the same day he wrote to the defendant enclosing a check for the interest and informing it that the mortgages had been paid off, and that the principal sum would be re-invested in two mortgages dated January 11th, upon two other lots belonging to Mrs. Mehen on Lexington Ave. The next day these mortgages were executed; the bonds and insurance policies sent to the defendant and the mortgage to the register’s office for record. One of these mortgages was upon the same premises as plaintiffs’ mortgage. The transaction was nothingless than a loan of $9,000 of the defendant’s money to Mrs. Mehen by Deane, as .agent of the University. In what way did Mrs. Mehen redeive the benefit of this loan ? First, by a payment to Deane as the agent of Constant, of the sum of $6,325 in satisfaction of the plaintiffs’ mortgage, and, secondly, by a credit in her account with Deane for the balance after deducting the fees and commissions of the attorneys.

It cannot be doubted that this was a good payment in law of the Constant mortgage. Deane, as his agent, had authority to receive it. It is shown that he had received payment of many similar securities for Constant, and had invested and reinvested moneys for him to the amount of over one million dollars. Deane and Squires gave Mrs. Mehen a written statement showing that $6,325 of the consideration of the defendant’s mortgage had been appropriated to the payment and satisfaction of the plaintiffs’ mortgage and they required her, through her attorney in fact, to sign a receipt to the effect that she had received that amount on account of the loan made by the defendant upon its mortgage,, through the satisfaction of the plaintiffs’ mortgage, and to certify to the correctness of the statement

The entire transaction may be thus concisely stated: of the $27,-000 received by Deane from the One hundred and seventh street mortgage, $18,000 belonged to the University; of this $9,000 were loaned to Mrs. Mehen on the- Lexington Avenue lot in question. Of this amount Mrs. Mehen paid to Deane as the agent of Constant the sum required to satisfy his mortgage. The case shows, and the trial court has found, that on January 11th over $23,000 were in. the hands of Deane and at the close of the day over $9,000 remained of the proceeds of the loan upon the One hundred, and seventh street property; so that he had at no time on that day less to his credit in the trustee account than the amount of defendant’s mortgage.

It makes no difference whether Deane actually paid the money to Constant. There was a long and complicated account between them involving a large number of transactions and investments, and upon which there was a balance due Constant of over $200,-000, including the amount of plaintiffs’ mortgage. Financial embarrassments and misfortunes, which inevitably follow the business methods which this record discloses, soon rendered Mr. Deane powerless to meet his liabilities, or else there would have been no occasion for this controversy.

It is evident that Deane regarded the mortgage as paid. He-testifies, “ that after the closing of the loan upon defendant’s mortgage I understood that the money represented by plaintiffs’ mortgage remained in my hands for investment.” It was deposited in his account as trustee, where he tells us all the moneys belonging to Constant, which carne into his hands for investment or reinvestment, were deposited. We have looked in vain through the record for some explanation of this trustee account. It does not appear whether it was an account kept by him as trustee of funds received from Constant alone, or from other parties, or whether it was a general account, in which all moneys received by him in a fiduciary capacity, from any source, were credited. A satisfaction piece of the mortgage was also prepared at the time by Deane’s direction, and after his assignment the mortgage and the unexecuted satisfaction piece were found in the box in which the satisfied mortgages were kept. It is further apparent that Squires himself construed the transaction of January 11th as a payment of plaintiffs’ mortgage. He testifies that, as one reason why he asked Deane whether the plaintiffs’ mortgage should be recorded, he supposed it ought to be recorded and satisfied; and that the statement for Mrs. Melicn, in which the mortgage was described as satisfied out of the proceeds of the University mortgage, was made primarily as a matter of book-keeping for Mr. Deane’s accounts. The reasonable inference is, that upon Deane’s books the plaintiffs’ testator Avas, or was to be, credited Avith the amount of his mortgage, otherwise the statement would be of no value for the purposes of book-keeping.

On May 22d, after Deane’s failure, the defendant’s treasurer addressed a confidential letter to Squires, referring to its mortgage and requesting full information in regard to it, and to its present condition, and any other facts the defendant ought to-know about the property and its mortgage. Squires replied on the 28th, stating that the mortgage was still in force, but that the house was in an unfinished condition, and giving other items of information; but saying nothing about the existence of a prior mortgage. If he then believed that there was such a mortgage-outstanding, it would seem to have been the most important fact which he could have communicated to the defendant upon the subject of its inquiry. He again wrote on June 23d, stating many details in regard to the mortgage and the advisability of foreclosure ; but made no reference to plaintiffs’ mortgage.

There is also proof in the case that Constant understood the mortgage had been paid to Deane, and that he was liable to account for the proceeds. Deane testifies that in the spring of 1884 he told him what had been done with reference to this mortgage- and he expressed his satisfaction with it. Afterwards, Constant prepared a statement of his account against Deane, which included the amount of the mortgage, and was made subsequent to the-assignment and with a view-to a possible arrangement for the liquidation of all of his liabilities. He frequently asked Deane if he had re invested the amount of the Mehen mortgage, and was told that he had not yet found a place for it.

Constant had other mortgages executed by the Mehens, upon which foreclosure suits were brought in the fall of 1884, and about the time defendant brought suit to foreclose its mortgage, but no attempt was then made to foreclose this mortgage and defendant had no intimation from Constant that he claimed it was a-prior lien, until January, 1885, three days before the sale under the foreclosure of defendant’s mortgage, when it received a letter from Constant’s attorney in this action, stating that he held a mortgage upon this property which had never been paid and that he had been advised by his counsel that it was a prior lien to the University mortgage.

It is a fact of some importance that’ plaintiffs’ mortgage was intended to be only a temporary lien upon the property. It was-what was known as “a builder’s mortgage,” that is, a mortgage given upon an unimproved lot upon which the mortgagor proposed to erect a building. No money was advanced at the time of its execution, but the amount of the consideration was to be advanced from time to time as .the work progressed. It fell due in four months and it was the expectation of the parties that it would then, or shortly thereafter, be replaced by a permanent ■loan; precisely what was done by the execution of the defendant’s mortgage, if, as it contends, the plaintiffs’ mortgage was then satisfied.

There are many other circumstances which are in harmony with the view that Deane regarded the Constant mortgage satisfied at the time he took the University mortgage, and which are irreconcilable with the claim that he then believed that the plaintiffs’ mortgage was an outstanding and valid incumbrance upon the property described in it.

It is to be observed that this court held on the former appeal, that if Deane “ recollected that there had been such a mortgage, but honestly believed it was, or had been satisfied, then, although mistaken upon that point, the University could not be charged with knowledge of the existence of such mortgage”

Whatever differences of opinion there may be as to the effect ■of the transactions of January 10th and 11th in operating to ■extinguish the lien of plaintiffs’ mortgage, we think it is conclusively shown that Deane then regarded it as satisfied. There is at least an entire absence of that clear and satisfactory proof which this court has declared it is necessary for the plaintiffs to furnish in order to uphold a finding that he did not honestly entertain such a belief.

There is also a rule of evidence which should have some weight here. If Deane and Squires knew, or believed, that the plaintiffs’ mortgage would be a valid lien upon this property after the •execution of the defendant’s mortgage, then they conspired to do & great wrong. They committed a palpable fraud upon Mrs. Mehen and upon, at least, one of the parties to this action. It has been repeatedly held by this court that where the natural inference from the proofs made does not necessarily lead to the presumption of a fraudulent intent, but the evidence relied upon is ■equally as consistent with innocence as with wrong-doing, that •construction must be placed upon it which will exonerate the party implicated from a dishonest intent. Morris v. Talcott, 96 N. Y., 100; Shultz v. Hoagland, 85 id., 464. This would be the rule upon the trial of an action in which the rights of Deane and Squires were directly involved. Much stronger reasons exist for its application where the rights of others depend upon the quality of their acts. They may have misapprehended the legal status •of the plaintiffs’ mortgage, but the evidence fails to show that they understood or believed that it was an existing lien upon the property when the defendant’s mortgage was executed.

The judgment must be reversed and a new trial granted, with costs to abide the event of the action.

Earl, Ch. J., Finch and Peckham, JJ., concur; Andrews, Gray and O’Brien, JJ., dissent.


author: Earl, Ch. J.

text:
    Bowers H. Leonard, App’lt, v. Roble Clough and De Witt C. Clough, Resp’ts.

      (Court of Appeals,

      Filed May 24, 1892.)

    Fixtures—Barn standing on realty cannot be reserved by paroi.
    Defendants conveyed to their daughter certain premises on which was a. portion of a barn, wjiich was built upon stones sunk in the ground. At the time of the conveyance the daughter told defendants that the barn was theirs, and they continued to occupy it, and subsequent grantees, including plaintiff, were notified that the barn belonged to defendants. In an action to recover damages for the removal of the barn, Held, that at the time of the conveyance by defendants the barn was a part of the realty, and there could be no paroi reservation of it, and that it passed with the land to the grantees under the successive conveyances, notwithstanding such notification.
    Appeal from judgment of the supreme court, general term, fifth department, overruling exceptions and directing judgment' for defendants on the verdict.

      Amasa J. Parker, for app’lt; John O'Brien, for resp’ts.

       Reversing 37 St. Rep., 814.

   Earl, Ch. J.

The matérial facts in this case are as follows % Prior to March 29, 1884, Adaline Clough owned a lot of land in the city of Auburn, upon which there was a small bam, and on that day she conveyed the lot by an ordinary warranty deed to the defendant, Bobie Clough, who owned the adjoining lot on the northerly side of the lot thus conveyed. On the 1st day of April, 1884, Bobie Clough, by an ordinary warranty deed, conveyed the same lot to her daughter, Mary Gilbert, with the exception of a stri p six feet by twelve rods, reserved from the northerly side of the lot. About one-third of the barn was upon the strip thus reserved, and thus the dividing line between the two lots, after that conveyance, ran through the barn, leaving about one-third thereof upon the land of Bobie Clough, and two-thirds-thereof upon the land of Mary Gilbert. At the time of the execution of the deed by Bobie Clough to Mrs. Gilbert, and immediately thereafter she said to Mrs. Clough and her husband: “ Now, pa and ma, the barn is yours; there can nobody interfere with you; ” and Bobie Clough and her husband have ever since been in the occupancy of the barn.

On the 28th day of October, 1886, Mrs. Gilbert by an ordinary warranty deed conveyed the lot to Julia M. Sherwood, and at the time of that conveyance Mrs. Sherwood was informed that the barn belonged to Mrs. Clough, and there was a paroi reservation of the same. On the 1st day of November, 1886, Mrs. Sherwood by an ordinary warranty deed conveyed the lot to Mrs. Eunice Nellis, and at the time of that conveyance Mrs. Nelliswas informed by paroi that Mrs. Clough owned the barn and that it did not pass. On the 8th day of November, 1888, Mrs. Nellis by an ordinary warranty deed conveyed the lot to the plaintiff, and at the time of that conveyance he was informed by paroi that the barn belonged to - Mrs. Clough and did not pass with the conveyance After he had purchased the lot Mrs. ■Clough informed him that she claimed the barn and intended to move it. from the lot, and he told her not to move it. After that the defendants moved the bam from the lot and then the plaintiff brought this action to recover for the value of so much of the barn as stood upon his lot, and claimed to recover treble damages.

The barn was a wooden structure worth less than $200, and rested upon four large stones at the corners and smaller stones at ■other places.

Upon the trial the plaintiff objected to the paroi evidence given by the defendants to show the paroi reservation of the barn at the times of the several conveyances of the lot. But the court overruled the objections and received the evidence. The court below held that the evidence was competent; that the barn after the conveyance by Mrs. Olough to her daughter became and remained personal property, and that she had a lawful right to remove the same, and judgment was entered upon the verdict in favor of the defendants.

We think a few plain principles of law require a reversal of this judgment. This barn at the time of the conveyance by Mra Clough to Mrs. Gilbert was a part of the realty, and there could be no paroi reservation of it The grantor could no more reserve the barn by paroi that she could reserve trees growing upon the land, or a ledge of rocks, or a mine, or a portion of the soil. As between the grantor and grantee it is very clear that the grantor would not have been permitted to show that the bam was reserved by paroi, as that evidence would have contradicted the deed,which was absolute in form. If the grantor had removed the barn the grantee could have sued her for trespass, and she could not have ■defended by showing a paroi reservation of the barn. If it had been claimed in such a suit that it was part of an oral agreement ■or reservation that the barn should not pass, that fact could not have been shown as it would have contradicted the deed. The •deed contained covenants of warranty which covered the entire title to the real estate, and the grantor could not in such a suit have shown by paroi that any part of the real estate was not ■covered by the covenants. So too, if it be claimed that what was .said by Mrs. Gilbert to Mrs. Clough immediately after the deed was delivered constituted a paroi gift of the barn to her father .and mother, the gift could not be operative because the barn at that time was a part of the realty. It had never .been severed from the realty, and had never been by any acts of' the parties or the owners made personal property ; and the paroi gift could net be upheld of a portion o.f the real estate without violating the statute of frauds. The one third of the barn which rested upon the lot owned by Mrs. Clough was, and remained, realty, and it is impossible to perceive how by mere words the other two-thirds ■could be converted into personalty. Can trees and other portions of real estate be converted into personalty by a mere paroi gift and without severance ?

It is clear that after the conveyance from Mrs. Clough to Mrs. Gilbert the barn remained a part of the realty and was covered by the deed and the covenants of warranty therein contained ; and so the bam passed to each successive purchaser, and no grantor could dispute that the grantee took title to the barn, and thus the title to so much of the bam as stood upon this lot was finally vested in the plaintiff. All the deeds contained covenants of warranty. 'Those covenants run with the" land, and each successive grantee could have the benefit of all the prior covenants. The plaintiff is in privity of estate with Mrs. Clough, and his rights are the same .as they would have been if he had been her immediate grantee. He holds under her deed, and in an action by him for a breach of her covenants she could not dispute that the barn was a part of the realty, and in this action against her for removing the barn she cannot dispute that it passed under her •deed. His rights are the same as Mrs. Hilbert's would have been if she had disputed Mrs. Clough’s right to the barn and before she conveyed had sued her,for removing it A careful scrutiny of the cases cited on behalf of the defendants shows that there is absolutely no authority for their contention in a case like this. If at the time of the conveyance of Mrs. Clough the bam had been personal property in the ownership of some other person, and the grantees had been notified of that fact, the title to it would not have passed by the successive conveyances. If this barn had been placed upon the lot by some third person with the consent of the •owner and with the understanding' that such third person could .at any time remove it, it would have remained personal property and would not have passed to a purchaser under any form of conveyance, providing such purchaser had notice of the fact But where the land and the buildings thereon belong to the same person, then the buildings are a part of the real estate, and pass with it upon any conveyance thereof. In such a case the grantor can retain title to the buildings only by some reservation in the deed, or by some agreement in writing which will answer the requirements of the statute of frauds. Any other rule would be exceedingly dangerous, and would enable a grantor, in derogation of his •grant, upon oral evidence, to reserve buildings and trees and other-portions of his real estate, and thus, perhaps, defeat the main purpose of the grant. For these views the case of Noble v. Bosworth, 19 Pick., 314, is a very precise authority.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.


author: Clement, Ch. J.

text:
    S. Fleet Spier, Pl’ff, v. The City of Brooklyn, Def’t.

      (City Court of Brooklyn, Special Term,

      Filed February 18, 1892.)

    1. Municipal corporations—Nuisance—Fireworks.
    The mayor of the city of Brooklyn is not author'zed by § 14, art. 5, of chap. 3 of the ordinances of that city to license an exhibition of fireworks in the street, and where he does so, the city is liable for any injury caused thereby.
    2. Same.
    An exhibition or fireworks on a public street is a public nuisance.

      Action to recover damages to plaintiff’s property caused by a rocket fired at an exhibition of fireworks on Montague street, which was licensed by the mayor.

      W. C. Be Witt, for pl’ff; A. F. Jenks, for deft.
   Clement, Ch. J.

The plaintiff, on November 1, 1887, was the owner and occupant of a house on Montague street, near the Academy of Music in this city, and on that evening there was a display of fireworks at the corner of Clinton and Montague streets. A political meeting was held at the academy, and the fireworks, consisting of bombs, rockets and Roman candles, were exhibited for that ■ reason. A permit was given by the mayor, in writing, to the person who received the contract, and such permit named the place where the fireworks should be set off. It is undisputed that the .display was extensive and “ unusual to have at all.” The evidence discloses that a rocket entered an upper window in the house of the plaintiff, and in a few minutes fire broke out, and the house, furniture and other property of the plaintiff were damaged by fire and water.

No authority has been cited by the learned counsel for the city tending to show that it has ever been held that it is lawful to set. off fireworks in a public street. On the contrary, there are several authorities holding that the discharge of fireworks on a street, is a nuisance per se. In Conklin v. Thompson, 29 Barb., 218, Judge John W. Brown said: “The streets of a city, and highways-everywhere, are not unfrequently appropriated to the uses of exploding fire-crackers and similar contrivances. Such acts are-nevertheless wrongful. They are tolerated, and not authorized,, and those engaged in committing them assume the responsibility of all the bad consequences which ensue. Any injury to the-persons of individuals, any injury to property, animate or inanimate, which result thereby, create a liability on the part of the-wrong-doer to compensate the sufferer.” In the case of Jenne v. Sutton, 43 N. J. Law, 257, the plaintiff was injured by the bursting of a bomb set off on a street at a political meeting in Jersey City, and Chief Justice Beasley held as follows: “ As the use of a public highway as a place in which to fire such an explosive-was illegal, and per se constituted a public nuisance, there can be no question with respect to the legal liability of all persons concerned in the doing of such an act, or who caused or procured it. to be done, for all the damages proximately resulting.” See, also, Wood on Nuisances, § 51; Scott v. Shepherd, 2 W. Black., 892; Fisk v. Wait, 104 Mass., 71; Bradley v. Andrews, 51 Vermont, 530; Penal Code, § 385; Flynn v. Taylor, 127 N. Y., 599; 40 St. Rep., 187; Heeg v. Licht, 80 N. Y., 579; Robinson v. Greenville, 42 Ohio St., 625; Town of Rushville v. Adams, 107 Ind., 475.

On the authorities above cited, I do not hesitate to hold that the exhibition of fireworks in Montague street on the night in question was a public nuisance.

The mayor gave the permit by virtue of an ordinance. (Chap. Ill, article V, § 14.) “ The use of fireworks of all. descriptions is prohibited within the city limits, except on the whole of the Fourth day of July in each and every year, provided, however, that this section shall not apply to such public displays as may be .authorized by the city authorities, or such private displays as may be allowed under permit from the Mayor granted for such purpose, etc.” The ordinance was valid and legal; it authorized the mayor to give permits for private displays at proper places. Under it the mayor could license exhibitions at Fort Greene Park,- or on any public square, but not lawfully on a street. This distinction is borne out by the authorities. Dowell v. Guthrie, 99 Mo., 653; Little v. Madison, 49 Wis., 605.

The city is not liable for negligence for failure to abate all nuisances in a street. In this case, if no permit had been given, •there would be no liability, for it is the duty of the police force to suppress disorderly conduct in the streets. The corporate duty ■as to the care of streets where no license is given is to keep the same in repair and free from encumbrances. The duty is similar to that of commissioners of highways of towns. The distinction between street and police nuisances is clearly pointed out in the ■case of Davis v. Bangor, 42 Maine, 522 ; see also Campbell v. Montgomery, 53 Alabama, 527. The city is not liable for negatively permitting fireworks in the streets. Hill v. Charlotte, 72 N. C., 55, or for negatively permitting the firing of cannon in the .streets. Robinson v. Greenville, supra; Norristown v. Fitzpatrick, 94 Penn. State, 121. It has been repeatedly held that a city is not responsible for the action or non-action of members of its police or fire forces. McKay v. Buffalo, 9 Hun, 401, affirmed in court •of appeals, 74 N. Y., 619; Smith v. Rochester, 76 id., 506.

From the testimony, it appears that the mayor expressly licensed an individual to set off fireworks on a public street, and thereby authorized a wrongful act A lawful license is a governmental act, but, in my opinion, the licensing of a nuisance in a highway is an act of the municipality. I have shown that a city is not liable for failure to abate a police nuisance where no license has been issued, because the police are not agents of the city. A different question is presented when a permit has been given, and such nuisance would not have existed without the permit. The .streets are under the care of the authorities of the city.

In the case of Cain v. Syracuse, 95 N. Y., 83, 89, Judge Finch held that, under a certain ordinance, the city had no power to ■enter upon private property to abate a nuisance, and used these words: “ In this respect, the power, and therefore the resultant ■duty of the corporation, is very different from that relating to the ■city streets, parks, avenues and buildings, which are within the ■corporate possession and control, which involve no invasion of private property or private right, and for the negligent care of which the city is alone responsible.” In Danaher v. Brooklyn, 119 N. Y., 241, 250; 29 St Rep., 391, Judge Earl said the city •“ owned this well as it owned its other property kept for public use, such as streets, parks and public buildings ; and it owed the duty of reasonable diligence to care for it as it was bound to care for such other property." If the streets are in the possession and control of the city, then I think that the corporation has no more right to license or maintain a nuisance on such streets than an individual would have on his own property. Haag v. Commissioners, 60 Ind., 511, and cases cited. The city should be held liable for licensing a police nuisance on a street, because the streets are under the control of the corporation. In Little v. Madison., 42 Wis., 643, explained in the same case, 49 id., 605, it was held that the city was liable under a similar state of facts. In the case of Robinson v. Greenville, supra, where cannon were discharged in a highway,'the corporation was held not to be liable, but in the opinion is to be found the following suggestion: “We cannot say that the firing was licensed or expressly authorized.” In Burford v. Grand Rapids, 53 Mich., 98, it appears that the city had licensed coasting in a street, and the same claim was made as in this case. Judge Cooley says on this question: “ If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention,, and perhaps it should be accepted as sound.” The case of Cohen v. New York City, 113 N. Y., 532; 23 St. Rep., 509, seems almost, in point, for there it was held that the city, by licensing a public nuisance in the street, was liable for any damages resulting therefrom, the same as if it had itself maintained a nuisance. JudgePeclcham (page 538), said that “ the license itself, the permission, with or without a consideration, to obstruct the street at all for any such purpose as was the case here, is the wrongful act on the-part of the defendant which renders it responsible for the damage naturally sustained from such obstruction.” In Danaher v. Brooklyn, page 255, supra, Judge Earl stated that a city “ is held responsible for the nuisance which it creates or permits, and for its wrongful acts.”

As already set forth, it was illegal to license the display of fireworks, and while the question whether the corporation is liable-for the act of the mayor is not free from doubt, I am inclined to hold that the city was responsible for the mistake of its mayor. The ordinance gives him the right to grant permits, and he erred solely in the place designated for the exhibition. The license was granted bona fide pursuant to a general authority to act for the corporation on the subject. Lee v. The Village of Sandy Hill, 40 N. Y., 442; The Buffalo & Hamburgh Turnpike Co. v. The City of Buffalo, 58 id., 639; Stoddard v. The Village of Saratoga Springs, 127 id., 261, 268; 38 St. Rep., 683. The-mayor, in the granting of the permit, acted for the corporation,, and not in the performance of a duty imposed upon him by law. It also appears that for several years it has been customary for the mayor, who is the chief executive officer of the city, to-grant permits for the exhibition of fire works at this particular-place, and, as was stated in the case of Cohen v. Mayor, supra, if it is known that such permits are illegal, and the city is held liable for the damages which result therefrom, it is probable in the future that similar permits will not be granted.

An abutting owner can recover damages for a private injury resulting from a public nuisance on the street. McDonald v. The City of Newark, 42 N. J. Equity, 136; St. John v. Mayor, 3 Bosw., 483.

After a careful examination of the*' testimony, I conclude that the plaintiff sustained damages in the sum of §11,000, with interest from March 30, 1888.

J udgment for plaintiff for $11,000, with interest from March 30, 1888, with costs. Findings to be settled on three days notice.


author: Van Wyck, J.

text:
    George W. Sloane, Resp’t, v. The Lockwood Chemical Co., Limited, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 28, 1892.)

    Appeal—Weight oe evidence—Case.
    The consideration on appeal of the denial of a motion to dismiss for want of sufficient proof, or of a new trial on the ground that the verdict is contrary to evidence, requires that all the evidence presented to the trial judg'e and jury should be beiore the appellate court. Where the evidence was conflicting as to whether there was a sale or only a delivery of goods on trial, the omission from the case of letters relating to the transaction which were received in evidence and taken by the jury will, at least, militate against a reversal on the ground of insufficiency of evidence.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion to set aside verdict.

      A. Oldrin Sailer and M. Tj. Towns, for resp’t;' David Welch, for app’lt.
   Van Wyck, J.

Plaintiff sues to recover §600 for two steam, generators adjusted to defendant’s boilers, at the request and on the promise of defendant to pay that sum therefor. The answer was a general denial. The verdict was for the plaintiff, and from the judgment entered thereupon and order denying the motion for new trial on the minutes, this appeal is taken. The plaintiff testified to the effect that William Lockwood, president of defendant, expressly agreed to pay him $600 for these two generators, if plaintiff would put them in its factory and adjust them to the boilers in the month of June ; that he did so put them in and adjust them in June, and that several times thereafter he demanded payment, and was put off by the excuse that it would he more convenient to pay later. William Lockwood testified to the effect that they were put in only for the purpose of seeing whether they would work to his satisfaction. William S. Lockwood, his son, and secretary of defendant, testified to the same effect as his father. The counsel for appellant expressly states that there are only two points for our consideration : First, an exception to the refusal of the court, at the end of plaintiff’s case, to dismiss the complaint on the ground that the proof did not conform, to the pleadings. What we have already stated disposes of this point, and it seems to us that the counsel, in making this motion, wisely said he did so, “ presuming that your honor will, of course, deny that motion.” We will not further discuss this, except so far as our views on the second point will apply thereto; for if, at the end of the testimony on both sides, the motion should not have prevailed, then error cannot be predicated upon the ruling. The second point, and the one most earnestly pressed by appellant’s, counsel, is that the motion for new trial, on the ground that the verdict was contrary to or against the weight of evidence, should have been granted. Whether the generators were sold and delivered to the defendant, at its request, and upon its promise to pay for same, or were delivered to defendant at its request for trial only, was fairly and clearly submitted to the jury without objection, and. without request to take the question from the j ury or direct a verdict for the defendant We have carefully read and weighed all the testimony contained in the appeal book, and do not feel called upon to disturb the verdict.

The plaintiff, on one side, testifies to the sale, and Lockwood,, president, and son, treasurer of defendant, on the other side, testify that there was no sale, there being circumstances in the testimony of each side given by these interested witnesses , which might be properly claimed to have corroborated both contentions. The consideration, on appeal, of the denial of a motion to dismiss the complaint for the want of sufficient proof, or of a new trial on the ground that the verdict is contrary to evidence, requires that all the evidence presented to the trial judge and to the jury sliould be before the appellate court. This being so, we think the omission from the case of three letters from defendant’s president and principal witness to the plaintiff, on the subject of this transaction, which were admitted in evidence, and were considered by the jurors and actually carried into the jury room by them, if not fatal to, must at least militate against the granting of appellant’s, request to this court to reverse, on the ground of insufficiency of evidence, the decision of the trial judge that there was sufficient to carry the question to the jury, and the decision of the jury that-there was sufficient to convince them of the facts constituting plaintiff’s cause of action. These letters may have turned the case in favor of the plaintiff.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.


author: Per Curiam.

text:
    Marvelle W. Cooper, App’lt, v. The City of Brooklyn, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed March 28, 1892.)

    JjVffiMER ADJUDICATION—ASSESSMENTS.
    Two proceedings for work on a street were instituted. The work in question was done under one proceeding, and an assessment laid under the other, which was vacated and a new assessment laid under the proceeding in which- the work was done. Held, that the former judgment was not conclusive in an action to set aside the latter assessment, as the ground on. which the former assessment was vacated was not shown.
    Appeal from judgment in favor of defendant

      Sidney V. Lowell, for app’lt; Almet F. Jenhs, for resp't.
   Per Curiam.

The appellant is the owner of real property-situated on the east side of Throop avenue between Putnam and Jefferson avenues in this city. This action was brought to can-eel an assessment for flagging the sidewalk in front of said premises. Two proceedings were begun, one to flag Throop avenue, east side, and the other to flag the same block on both sides. The sidewalks were actually laid under a contract in the second proceeding, but by mistake the assessment was laid in the first. An action was brought in this court to have the said assessment declared void, and by consent judgment was entered vacating the same. The city authorities then laid an assessment in the second proceeding, which the plaintiff in this action unsuccessfully endeavored at special term to have canceled.

The judgment in the prior action was not conclusive. It does not appear by the record on what ground the assessment was vacated. The first and second requests to find as conclusions of law are unsupported by any finding of fact, or, if they can be treated as findings of fact, are not sustained by the evidence, and it does not appear that the questions litigated in this action were passed upon in the prior action. The burden rests upon the plaintiff to establish the former adjudication. Bell v. Merrifield, 109 N. Y., 202; 14 St. Rep., 796.

We have carefully examined the record and hold that the assessment in question was in all respects valid.

Judgment affirmed, with costs.

Clement, Oh. J., and Van Wyck, J., concur.