text:
    MARY RICHARDSON, Plaintiff, v. THE WESTCHESTER FIRE INSURANCE COMPANY, Defendant.

      Written, consent to other insurance — what constitutes a waiver of the condition requiring it.

    This actim was upon a policy of insurance issued by the defendant on March 14, 1875, to run for one year, containing a clause providing- that, “if the insured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of this company written hereon, * * * this policy shall be void.” At the time of the issuing of the policy, two other policies had been issued upon the same property, notice of the existence of which had been given to defendant’s agent in the previous fall, and of which notice in writing had been given by him to the company.

      Held, that the act of the company, in issuing the policy after notice of the exist ence of the others, without indorsing its written consent thereon, was a waiver of the condition requiring it.
    Motion by plaintiff for a' new trial, on exceptions ordered to be heard in tlio first instance at the General Term, after an order made at the New York Circuit dismissing the complaint.

      Dudley Field, for tbe plaintiff.

      C. Frost, for tbe defendant.
   Daniels, J.:

Tbe action was upon a policy of insurance, by which tbe defendant insured Samuel Elliott in the sum of $2,000, on a two-story frame dwelling, situate on the south side of the landing in tbe village of Hastings, Westchester county. The insurance extended from tbe 14th of March, 1875, until the 14tk of March, 1876, and tbe building was destroyed by fire on the 19th day of April in the former year. By the terms of the policy the loss was payable to the plaintiff as mortgagee. It appeared that the building, while it was insured as a dwelling, was, in a part of tbe first story, used as a store, and that articles of a specially hazardous nature constituted a portion of the stock. But it had been so insured by tbe defendant in the year 1870, and that policy had, from time to time, been renewed, until the one in suit was issued in the same terms, and the applications for the renewals stated that the first story was used for a store and dwelling. The defendant was therefore informed, in writing, of the particular manner of the occupancy of the assured; and after receiving that information, and continuing the preceding policy, and in fact issuing the present one also upon it, the defendant could not properly be allowed to avoid its liability on account of this misdescription by which the subject of insurance was designated a dwelling, instead of a store and dwelling, as it literally was, for its conduct was such as to indicate that for the purposes of the insurance it was satisfied to insure the property, as it was, in fact, under that description.

But a still more serious defect than this existed in the plaintiff’s case. That arose out of one of the conditions of insurance indorsed upon the policy, by which it was declared that, “ if the insured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of this company written hereon, * * * this policy shall be void.”

The defendant proved that Elliott had a policy in the Orient Insurance Company on the frame building and store, $2,000; the stock of groceries and other merchandise usually kept in a country store, $1,000; and furniture, $500; the policy being dated September 5, 1873, for one year, and renewed September 5, 1874, for one year; and that he had another policy in the Allemania Insurance Company, dated March 6, 1875, on the building, $500; on the stock of threads, needles, groceries, etc., $1,500. Both these policies permitted other insurance. It was shown that Elliott gave notice to the defendant’s agent of the existence of these insurances about the fall of 1874, before either the policy in suit or the one taken from the Allemania Insurance Company was issued, and that notice in writing to that effect was also previously sent by the agent to the company; but when the insurance in suit was made, both the other insurances mentioned in ■the notice had been effected on the property. They then existed as the defendant had been already notified in writing of them; but nothing beyond these facts transpired upon the subject of these insurances between the assured and the defendant. They were not indorsed upon the defendant’s policy, as that was required by the terms of this condition; and as nothing more was done from which its waiver by the defendant may be inferred than the existence and receipt of this notice and the subsequent execution of the policy, the point is presented, whether these facts will justify the conclusion that the company had dispensed with a literal or further performance of the condition.

To hold that it did not do so would be simply saying, in effect, that it should be protected in issuing a policy which, at the time, it had every reason for believing would be of no possible advantage to the person receiving it; that it might receive the premium and at the same time frame and deliver its contract in such terms as would avoid all future liability upon it. This would be to sanction a palpable fraud, which coui-ts of justice always very properly refuse to do. It would be a legal snare, seriously impairing the utility of a large class of obligations, in most cases very carelessly as well as heedlessly accepted, and relied upon by the persons taking them.

It was undoubtedly the intention of the defendant to issue á valid and binding policy of insurance when the one in suit was delivered, and that it could only do in the form in which the business was done, by waiving this condition, which it should be held to have done, in view of the notice it had previously received of the other insurances. The object of the condition was to secure unequivocal evidence on the subject, and that had been obtained by the written notice, and all that then remained was a formal statement of the fact in writing on the policy afterwards issued. That was necessary in order to render the policy formally complete, and the defendant should have done that before it allowed the instrument to be delivered. It omitted to do so, and that omission should now be held a waiver of its right to insist upon this failure as a defense to the action. ( Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434.)

The fact that specially hazardous articles composed a portion of the stock in the store did not invalidate the policy, although not insured as such, for they seem to have been an appropriate and ordinary portion of the stock of such a store as was maintained upon the premises. The plaintiff offered proof which would have estabhshed this fact if it had been received, and for the present purposes it must be assumed that the truth was as the plaintiff proposed to show it. That would have removed the objection taken on this portion of the case to the plaintiff’s right to recover. (Pindar v. Kings Co. Fire Ins. Co., 36 N. Y., 648.) The case was certainly one in which the complaint could not be legally dismissed. At most, the defendant could properly claim nothing more than that the facts, upon which the points were presented, should have been past upon and decided by the jury. The nonsuit must be set aside and a new trial ordered, with costs to abide the event.

Ingalls, P. J., and Potter, J., concurred.

Nonsuit set aside; new trial ordered; costs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. VIRGINIA G. SANFORD, Tenant, Appellant, v. FREDERICK G. GEDNEY, Justice, etc., and EMILIE L. SIMMONS, Landlord, Respondents.

      Notice to quit — requirement of.

    Where it is stipulated that the tenant shall quit on ten days’ noiice, such notice must be precise and definite as to the time when the surrender is required to be made. A notice requiring- the tenant to surrender possession “ as soon as practicable ” is insufficient.
    Certiorari -issued to review summary proceedings, instituted by the respondent, Emilie L. Simmons, and resulting in the removal of the relator, Virginia Sanford, from the possession of certain demised premises.

      W. H. MacDougdl, for the relator.

      H. M. Whitehead, for the respondent.
   Daniels, J.:

The proceedings to remove the tenant were instituted on the averment that she was bound to leave and surrender the demised premises upon ten days’ notice from the lessor; that such notice was given and the teuant continued to hold over. Both those facts were denied by the tenant in her affidavit, made in response to that on which the summons was issued. And for the purpose of sustaining the allegation that ten days’ notice to quit the demised premises had been served; the following notice was given in evidence:

“ Mrs. Sanford :
“ Dear Madam : Mrs. Simmons claims that you are the party in default of contract, and requests m'o to notify you that she desires you to surrender possession of the apartments you now occupy in her house as soon as practicable, and she hopes you will do so without further notice.
“ Respectfully yours,
January Uh, 1878. “ Z. E. SIMMONS.”

Precisely when it was served was not shown, but it was stated, hi the lessor’s affidavit, to have Ipeen on or about the 14th day of January, 1878, and that more than ten days had elapsed on the sixteenth day of the same month, -when the affidavit was' sworn to, since such service. This statement involved something of a discrepancy, but it may, ncvorthless, have been true that the notice was served more than ten days before the summons was issued, which was on the seventeenth day of the month. But the objection has been taken that this notice did not terminate the tenancy; and that seems to bo well founded, for no time was mentioned in the notice when the tenant was required to surrender the possession, neither was it stated that the surrender was required at the end of ten days from the time of the service of the notice. It, in fact, contained nothing apprising the tenant of the fact that she was required to surrender the premises at any particular time; it was merely that she would do so as soon as might be practicable, which left the time to bo controlled entirely by circumstances. The law, on the other hand, seems to be tolerably well settled, that a notice given for the purpose of ending the tenant’s term must be precise and definite as to the time when the surrender is required to be made. As much as that was clearly implied in the stipulation — if that, in fact, was ever made — that the tenant was to quit on teu days’ notice. This subject was examined in the case of Currier v. Barker (2 Gray, 224), where it was held that a notice, very much like' the one now relied upon, was not sufficient. As to that notice, it was said, “ the notice in terms was to quit and deliver up the premises, fixing no time by naming a day or otherwise, and therefore operated as a demand to quit and deliver up the same forthwith, and is not distinguishable from the cases before decided.” (Id., 226, 227.) And substantially the same principle was applied in Anderson v. Prindle (23 Wend., 616). For this reason, even if the tenant had agreed to leave upon a ten days’ notice to quit, which was controverted with a decided degree of probability in favor of the defendant’s position, the term was not ended when the proceedings were commenced by the service of such a notice as the stipulation required should be given. The proceedings should consequently be reversed with costs, but as the year for which the premises were in terms demised, subject to the alleged stipulation for its earlier termination, expired on the 1st day of October, 1878, no restitution can be awarded to the tenant. (Chretien v. Doney, 1 Comst., 419.)

Ingalls, P. J., and Potter, J., concurred.

Proceedings reversed, with costs.


text:
    In the Matter of the Petition of ANNIE F. HYDE to Vacate an Assessment for Paving Fortieth Street, from Third Avenue to Madison Avenue.

      Certificate of commissioners that contract is free from fraud — chapter 580 of 1872 — what irregularities aured by.

    The certificate of the commissioners, appointed under chapter 580 of 1872, that the contract for repaving a street in New York is free from fraud, cures any irregularity in an assessment of the expenses thereof— e. g , a failure to publish the resolution — although the work was fully completed before the passage of the said act. .

      Appeal by the Mayor, aldermen and commonalty of the city of New York from an order vacating an assessement for repaving Fortieth street, between Third and Madison avenues. The petitioner was the owner of a lot, ward No. 26, in block No. 425, which was assessed for the trap-block pavement in Fortieth street, January 31st, 1871. The grounds alleged for vacating the assessment were: (1) payment of previous assessments for the same purpose; and (2) failure to publish the proceedings of the common council. The ordinance was passed by the respective boards March 11 and April 27, 1871, and approved by the mayor April 28, 1871. Evidence was given tending to show that the resolution had never been published as required by the charter. The contract for doing the work, and tlie work, were passed upon by the contract commissioners, and certified to be free from fraud. The work was completed on the 30th of September, 1871, and the assessment confirmed January 30, 1874. An assessment for paving Fortieth street, between Madison and Fourth avenues, ivas imposed on the same property in 1856, and was paid. The justice at Special Term granted an order vacating the assessment, and from that order this appeal was taken.

      J. A. Beal,■for the appellant.

      P. A. Hargous, for the respondent.
    The certificate of the commissioners appointed under chapter 580, Laws of 1872, did not validate the assessment. The decision of the Court of Appeals In re Peugnet (67 N. Y., 441) was made upon the ground that it did not appear in the proofs that the work for which the assessment was imposed was completed, or in course of completion, on the 7th day of May, 1872, the time of the passage of the Commissioners’ Act. (Inre Mayer, 50 N. Y., 504; In re Phillips, 60 N. Y., 16; In re Anderson, 60 N. Y., 457; In re Astor, 53 N. Y., 617.)
   Daniels, J.:

The work for which the assessment was made was ordered by a resolution adopted by the board of aldermen on the eleventh of March, 1871, and by the board of assistant aldermen on the twenty-seventh clay of April, 1871, and approved by the mayor, on the next day, and the work was performed by the thirtieth of the following September. Evidence was given tending to show that no publication was made of the resolution, as that had been required by the amendments made to the charter in 1870. But it was shown that the contract entered into, and under which the work had been performed, had been subimittecl to and approved by the commissioners designated by chapter 580 of the Laws of 1872; and that was held in the Case of Peugnet (12 N. Y. Sup. Ct., 434), to be sufficient to sustain such an assessment, even though the notice which had been previously required to be given was not published;, and this view of the effect of the act of 187'2 was sustained by the Court of Appeals in the decision by that tribunal of the same case. (67 N. Y., 441.) In that case it did not not appear that the work was completed before the passage of the act of 1872; and as that fact has been shown in the present case, it has been urged that it should not be controlled by this authority. But in the last consideration of that case, it was not held that work completed before the act was passed should be excluded from its control. It was, on the contrary, stated that “it could be very plausibly argued that the ' saving clause of the seventh section, introduced for the benefit of those who were assessed for repaving streets, was confined to those cases in .which the contracts had not been passed upon by the commission created by the act and declared free of fraud, and that the very explicit provisions of the first and succeeding sections, validating and confirming all ordinances and contracts for. work, and imperatively requiring the comptroller to pay for the same and certify the amount, and directing the assessment of the amount so certified upon property benefited, did in fact make valid, for all purposes, all ordinances, contracts and assessments within the terms of those sections, and that the seventh section would have full scope and effect in its application to ordinances and contracts that had not been submitted to and passed the scrutiny of the commission.” (Id,, 445.) This was not an intimation, by any means, that work completed before the enactment of the statute was' not within its provisions. But the tenor and scope of the comments, made upon the effect of the statute, are in favor of its application to work already performed when it was enacted. And the propriety of the application is rendered entirely evident by the terms of the act, for they have expressly been made to include all contracts made or entered into within five years previous to the passage of the act; and as. to all of them, after their approval, the expenses of the work were directed to be paid and assessed upon the property benefited by its performance, which certainly would not have been done, if it had been intended to allow the assessments to be afterward vacated for want of the publication of notice, which was one of the omissions that the statute intended to rectify. (Laws of 1872, chap. 580, vol. 2, 1412-15.)

These acts should be construed together, so far as that may be consistently done, and all their provisions sustained; and by so construing them, full effect can be secured to this seventh section without extending its provisions so far as to deprive the others preceding it of effect, which will be done if an assessment can be vacated under it that has been imposed in pursuance of the certificate made by the commissioners. The design of both the acts seems to have been to provide for the assessment and payment by the property benefited of the expenses of all improvements made under contracts entered into during the period of five years preceding the law after they should be certified to be free from fraud ; and in other cases only to provide for vacating the assessments made for repavements when the required publication of notice had been omitted. The decision of the Court of Appeals in the case of Peugnet is in no sense in conflict with this theory of the act; bui on the contrary, so far as any intimation has been given on the subject, it sustains this construction of its provisions ; and under that, this assessment should not have been vacated. For it war conceded that the contract for the work had been submitted to. and approved by, the commissioners, and that they had. so stated in their certificate. For that reason it cannot be supposed that the case can be made more favorable to the applicant by a further hearing, and the order, therefore, should be reversed and the application denied, with costs and the usual costs of the appeal.

Ingalls,. P. J., concurred.

Present — Ingalls, P. J., Daniels and Potter, JJ.

Order reversed; application denied, with costs and costs of ’ this appeal.


text:
    ALLEN F. HAND and Others, Appellants, v. ROSWELL S. BURROWS and Others, Respondents.

      Pei-mission to plaintiff to bring inparties — upon what terms granted.

    In .this action one of the defendants, a bank, demurred on the ground that- its-.-'receiver should have been made a party to the action; two of the defendants - answer jointly, and all the others separately, none of them setting up by demurrer the non-joinder of the receiver, which defect of non-joinder appeared upon the face of the complaint. The demurrer was overruled on the ground1,that the corporation had no interest in the joinder, but it appearing that, in' this respect, there was a defect of parties, the plaintiff was allowed to join the receiver as a party, but was required to pay costs up to that time to all • the defendants who had answered. The bringing in of the- receiver did .not:1 change any of the issues in the action.

      Held, that it was error to compel the plaintiff to pay costs to .the defendants who had failed to demur.

      Held, further, that the order requiring him so to do was appealable. -
    Appeals by plaintiffs, one from a portion of an order granting,. conditionally, a motion by plaintiffs to amend by adding a party defendant, the other from an order denying a motion for' a readjustment of costs. This is an action brought by certain stockholders in a national bank against its directors to recover' for their negligence in the discharge of their official duties. In April, 1873, the bank became and has since been insolvent, and Charles E. Strong was duly appointed its receiver. The bank itself wasimpleaded as a defendant, but the receiver was not.. Two of the defendants have not appeared; the remaining seven defendants, including the bank, have appeared, all by one firm. Of these seven defendants, the six directors answered separately, except in one case in which two joined in one answer. Their defenses were substantially identical. In all of the answers the objection was,
    ' taken that the receiver of the bank was not made a party. A demurrer was interposed in the name of the bank. One ground . of which was that the receiver was not made a party. This demurrer was overruled, the judge at Special Term holding that the defendant, the corporation, had no interest in the joinder. Subsequently plaintiffs moved to amend by adding the name of Mr. Strong as receiver, as a party defendant. No amendment was necessary in the body of the pleadings. The complaint already contained proper averments of his appointment. The motion to amend Avas made at Chambers, held by Mr. Justice Donoi-iue, whose decision was : “If the plaintiff will pay all the the costs up to the present time, the leave asked will be granted; otherwise denied, Avith ten dollars costs.” The order, as actually entered, imposed as terms the payments of all costs up to that time ; that the defendants, who had answered separately, and the bank should be entitled severally to such costs, and also provided that the defendants may answer or demur anew to the complaint within twenty days after payment of such costs. From the part of the order imposing such terms, the plaintiffs take the first appeal. The defendants' counsel under the provisions of such order taxed the bill of costs. The bill, as taxed, amounts to $338.40. Amotion for readjustment, in the nature of an appeal from various items, Avas made upon affidavits and papers; all the objections were overruled and the motion denied. From the order denying this motion the second appeal Avas taken.

      Geo. G. Ilolt, for the appellants.

      G. E. Tracy, for the respondents.
   Daniels, J.:

As this case was decided upon the demurrer of the Atlantic National Bank, it Avas settled that the receiver of that bank should have been made a party defendant in the action. The demurrer Avas overruled but it appeared by the complaint that in this respect there Avas a defect of parties. (Code of Civil Procedure, § 488,^, subd. 6.) The defendants Buitoavs, Raynor, Root, Allen, Sheldon and Scribner did not demur, but answered, all of them separately, except' the defendants Raynor and Root, Avho joined in their answer. They all consequently Avaived the objection, which the bank presented by the demurrer. For when such an oU.v. appears, as it did on the face of the complaint, it can be taken only by demurrer. (Code of Civil Procedure, §§ 498, 499.) When the order was made allowing'the receiver to be joined as a defendant in the case, no change was required to be made in the statement of facts upon which the plaintiffs sought to maintain their action. But he was brought in so that he would be concluded by the judgment, in case one should be recovered by the plaintiffs, and the defendants would avoid being subjected to the risk of another action for the same cause at his suit. This required no change in the issues joined by the answer already served. And the order made provided for no such change. Still, the leave given to join the receiver as a defendant was burthened with the requirement that the plaintiffs should pay the defendants all their; costs up to the time of mailing the order — those who answered separately being severally allowed such costs. As to the defendant that demurred, this may have been proper; but the other defendants had no title to these costs, because the issues between themselves and the plaintiffs required no change by the addition of the receiver of the bank as a defendant. As to them, these terms were in no legal sense of the word proper; and it is only to such as are just in themselves that the court can subject the moving party, when leave of this nature shall be applied for and given. (Code of Civil Procedure, § 723.)

There were no facts affecting the application which were any more fully before the Special Term, on the hearing of the application, than they now are before this court. They can consequently be as effectually and properly considered here as they were there; and, from such consideration, it is evident that the terms imposed upon the plaintiffs were more onerous than were required by the circumstances of the case.

The order affected a substantial right, and for that reason an unqualified right of appeal exists to the General Term, although the relief applied for involved the exercise of discretion (Code-of Civil Procedure, § 1347, sub. 4); and when such a right exists, full effect can only be given to the appeal hy a complete ■review of every consideration affecting the disposition of the case. It is not a restricted, but a general appeal that the parties have been secured in cases of that description. And, under this authority, this order should be so modified- as to allo.w the.- amendment, on the payment of the costs of the bank, including, costs of opposing this motion, which was the only defendant, legally .availing itself of the, objection that the receiver had been, improperly omitted as a defendant in the action; and as so modified, it should be,affirmed without costs of this appeal.

Ingalls, P. J., concurred:.

Present — Ingalls, P. J., and Daniels, J:

Order modified as directed in opinion, without - costs to either pai’ty. on the appeal.


text:
    EDWARD CROFT (alias EDWARD CRAFT), Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Former trial and acquittal — when a bar to a second trial-

    The plaintiff in error was indicted for uttering and publishing a forged check, drawn upon tbe Second National Bank, the indictment being defective in alleging that the bank, instead of the prisoner, had knowledge of the falsity and forgery of the check. Notwithstanding this defect, he wag tried, and the. jury, without leaving the bar, found the prisoner not guilty., A second indictment, proper in form, was then found, upon which he was tried and convicted, he objecting on the gr-ound of his former trial and acquittal.

      Held, that as it did not appear that the-former acquittal resulted from a variance between the indictment and proof, or from any exception to the form and sufficiency of the indictment, the presumption was that the acquittal was on the merits, and that it was, therefore, a bar to a second trial.
    Writ of error to the Court of General Sessions of New York, to review tbe conviction of tbe plaintiff in error of tbe crime of forgery.

      J. M. Gfuiteau, for tbe plaintiff in error.

      ¿3enj.. Ki Phelps (district attorney), for the people>
   Daniels, J.:

The prisoner was indicted for forging, and also for littering and publishing as true, a forged check, signed by M. E. Dows, an’d drawn upon'the Second National Bank. lie had been previously indicted defectively for the same offenses. By the first count of the preceding indictment, he was charged with forging the same check, but it was stated to have been drawn on the “ Second,” instead of the Second National Bank. And the second count of the indictment, instead of charging him, as the second indictment did, with uttering and publishing the check knowing the same, to be false, forged and counterfeited, simply stated in place of that allegation,' “ the said Second National Bank, at the same time he ■"so uttered and published the last-mentioned false, forged and counterfeited bank check as aforesaid, then and there Well knowing the same to be false, forged and counterfeited.” Instead óf ■charging the prisoner, as it should, with this guilty knowledge, it ■charged the knowledge upon the bank, which formed a very substantial defect in the indictment. But the prisoner, notwithstanding this defect, was placed upon his trial on this indictment, and the trial resulted in: his acquittal. That was relied upon as a defense to the second indictment, against the form of which no objection could properly be made. But as the district attorney did not regard the evidence which he could produce as sufficient to justify a conviction under the first count, which was for the ■forgery, that was •nolle prosequied; and-to the second count,'then ■being all that there remained of the indictment, the prisoner 'specially pleaded his previous trial and acquittal. To this the district attorney demurred, and the people had judgment on the demurrer. The plea itself forms no part of the present record, and for that reason it cannot be determined that this decision was erroneous. But, in support of the decision made, it must be •presumed that the plea was for some reason so defective as a defense as to warrant the disposition which was made of it.

The facts themselves, however, were shown upon the trial of the ■second indictment. And from them it simply appears that the prisoner was “tried and acquitted; ” that “the jury, without leaving the bar, say they find the prisoner not guilty.” When these facts came into the case does not clearly appear, otherwise than in the proceedings stated to have been taken upon the defendant’s plea. But they were assumed as being fully before the court for its consideration and action; and the court was rather informally requested to direct an acquittal, because of the result of the formal trial. To the refusal to do that, an exception was taken; and as these former proceedings have been assumed, as they now appear at the end of the case, in the arguments upon each side, they should be regarded as established, in the disposition which, upon their basis, should be made of the case. And considered in that manner they do not present a case where, upon a defective indictment as the first clearly was, the prisoner was on that account acquitted. Although it was materially defective, it was entirely competent ■for the prisoner to allow the charge, intended to be made against him, to be tried on the evidence and the facts that it might be found to establish. And if that was done, the acquittal would be a bar to another and more perfect indictment for the same offense. The statute of this State clearly contemplates that condition of the law. It has been framed and enacted upon that theory; and ■to carry it out, it has enacted that “ when a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same offense.” (3 R. S. [5th ed.], 989, § 34.) But this section cannot be allowed to control this case, for the reason that it does not appear that the former acquittal resulted either from a variance between the indictment and the proof, or from any exception to the form or substance of the indictment. On the contrary, from the fact that he was tried and acqitted, the presumption arises that it was on the merits of the case. If that had not been the truth, something should certainly have been disclosed showing the facts to have been otherwise. In the absence of such evidence, it cannot be presumed that the acquittal was produced by a variance, or in consequence of any exception taken to the indictment. But the presumption, on the other hand, arising out of the facts of a trial and an acquittal is, that it was on the merits, and was justified by the evidence. And when that is the case, the next section of the statute must govern the disposition which should be made of another indictment for the same offense. By that it has been declared, that ‘1 where a defendant shall have been acquitted upon trial on the merits and facts, and not upon any grounds stated in the last section, he may plead such acquittal in bar of any subsequent accusation for the same offense, notwithstanding any defect, in form or in substance, in the indictment upon which such acquittal was had.” (3 R. S. [5th ed.], 989, § 35.) The case, as it appeared on the evidence for the defendant, was within this section of the statute. It appeared that the prisoner had before been tried and ■ acquitted on the merits and facts, because it was shown that he was tried and acquitted generally without any qualification or restriction, in the signification of those terms; and when used in their general sense as they were — they import such a trial and acquittal. To bring a case within the preceding provisions of the statute, it must appear in fact that the acquittal resulted from a variance between the evidence and the indictment, or from some exception to the from or substance of the latter. That did not appear in the present case, but it did appear from the legal significance of the terms used to indicate what had been done, that the previous acquittal was on the merits and facts, and for that reason it was a legal bar to another accusation and trial.

The judgment should therefore be reversed, and a new trial ordered.

Ingalls, P. J., and Potter, J., concurred.

Judgment reversed and new trial ordered.


author: Daniels, J::

text:
    PATRICK MURTAGH, Administrator of, etc., THOMAS MURTAGH, Respondent, v. WILLIAM C. CONNER, Sheriff of the City and County of New York, Appellant.

      Agreement of judgment-debtor, to pay sheriff for keeper of goods levied upon — validity of — meaning of words, “ by color of office."

    Where a deputy sheriff levies upon the goods of the. judgment-debtor, and the latter, in order to prevent the closing of his store, agrees that a keeper shall be employed, and that he will pay for his services, such agreement is, if in all respects just and fair, a valid one, and capable of being enforced by the sheriff.
    The words, “ by color of his office,” in the act prohibiting the taking- of security by the sheriff, includes only such acts as are evilly done by the countenance ■of an officer, and necessarily imply that the act is unlawful and unauthorized, ■and that the legal right to take the security is a mere color or pretence.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of the jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    A levy was made by one of defendant’s deputies upon a stock of goods belonging to plaintiff’s intestate, and this action was brought to recover the balance of the proceeds arising from a sale thereunder, after satisfying the judgment and all legal claims and fees.
    The answer admitted the levy and sale, and alleged that the sheriff, after receiving the execution, and after the levy, and when the said property was about to be removed by his deputy, was requested by the defendant in the execution not to remove the said goods, as it would break up his business, but to allow them to remain upon his premises, and place a keeper in charge of the same until such time as the judgment should be satisfied or the goods sold to satisfy the same, and that ho, the execution-debtor, would pay the keeper’s fees and all other expenses incurred thereby ; that, acting upon such request, and solely in consequence thereof, the sheriff permitted the said goods and chattels to remain on the premises, and placed a keeper in charge of the same for fifteen days and fifteen nights, and that the sale thereof was postponed five times at the request of the execution defendant, in order to give him an opportunity to pay said judgment; that defendant employed an auctioneer to sell said goods at the request of the plaintiff Murtagh, and was compelled to, and did pay the fees of the said auctioneer, and claimed to recoup or offset ■ these amounts paid by the sheriff to the person watching the goods and to the auctioneer, as by agreement with the execution-debtor, against the demand of the plaintiff”.

      It. 8. Green, for the appellant.
    The agreement was not void as made colore officii. It is not an agreement to pay the officer for doing an illegal act. The act ivas one collateral to and consistent with his duty. [Decker v. Judson, 16 N. Y., 442; Burrall v. Acker, 23 Wend., 608; Cornell v. Dakin, 38 N. Y., 253.) Analogous cases support the validity of such agreements. (Acker v. Burrall, 23 Wend., 606; Cornell v. Dakin, 38 N. Y., 253; Hilliard v. Austin, 17 Barb., 141; Cajrp v. Johnson, 7 J. B. Moore, 518; Stephens v. Bothwell, 6 id., 338.)

      Theo. N. Melvin, for the respondent.
    The refusal to charge the jury that they should allow the expense of a keeper, and the charge that the agreement was contrary to law, were both correct. The defendant’s fees are fixed by statute, and those only are collectible. (5 R. S. [5th ed.], chap. 10, tit. 3, § 33, p. 924; 3 Edm., S. L., chap. 10, tit. 4, p. 669; Crofut v. Brandt, 58 N. Y., 106; Lord v. Richmond, 38 How., 173; White v. Madison, 26 N. Y., 127; Lynch v. Meyers, 3 Daly, 256; Salina Bank v. Alvord, 31 N. Y., 474; Comyn on Conts., 30.
   Daniels, J::

An execution was issued to the defendant upon a judgment recovered against the plaintiff’s intestate. A deputy of the defendant levied upon the stock of the judgment-debtor contained in a store where he carried on his business. This stock was afterward sold to satisfy the execution, and the sum of $161.03 was realized from the sale beyond what was required to satisfy the execution. To recover this amount was the purpose of this action; and, in part to defeat it, the defendant alleged 'and gave evidence tending to establish the fact that it was agreed, at the instance of the judgment-debtor, with the deputy who held the execution, that he should not close the store of the debtor, which would produce a suspension of his business, but that he should employ a keeper to take charge of it, and that his compensation should be paid by the debtor. It was further shown that such keeper was employed, who kept the store open, and that his compensation amounted to the sum of $90, which was accordingly paid by the deputy. The court held this agreement to be void, and for that reason practically excluded this defense. It has been stated that this ruling was made on-the authority of the cases of Lord v. Richmond (38 How., 173), and Crofut v. Brandt (58 N. Y., 106). But an examination of the opinions delivered in these cases discloses the fact that this point was neither presented nor decided in either of them. It was incidentally referred to in the latter, but expressly left undecided. At the same time two cases were alluded to, which might be considered as decisive in favor of the validity of such an agreement; these were the cases of Stephens v. Rothwell (6 J. B. Moore, 338), and Capp v. Johnson (7 id., 518); and so far as they consider this subject, they sustain the position that such an agreement may be lawfully made and enforced. It was not a service for which any fee or compensation was fixed or allowed by law, and for that reason it was not within the terms of the statute prohibiting sheriffs and other officers from receiving any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of this State. (3 R. S. [5th ed.J, 930, § 5.) This act extends no further than to prohibit the receiving of greater fees than those allowed by statute for the performance of official services in the cases where fees, or compensation for the service, has been or shall be prescribed. It has no application to such services as are not mentioned in the statute, and for which no fees or compensation has been designated, and as this was a service of that description, the prohibition of the statute did not include it. It has also been declared that no sheriff or other officer shall take any bond, obligation or security, by color of his office, in any other case or manner, than such as are provided by law; and any such bond, obligation or security, taken otherwise than as herein directed, shall be void.' (3 R. S. [5th ed.J, 476, § 48.) This provision is expressed in broad and comprehensive terms, which, without qualification, might include agreements of this description; but they have been materially restrained in the construction and application of the phrase: “by color of his office.” That has been construed to include only such acts as are evilly done by the countenance of an officer. It is always taken in the worse sense, being grounded upon corruption to which the office is as a mere shadow or color, taking a security by a public officer vivtuti officii, implies that the act is lawful either by the common law or by the authority of some statute. But, talcing it by color of his office, necessarily implies that the act is unlawful and unauthorized, and that the legal right to take it is a mere color or pretense. (Burrall v. Acker, 23 Wend., 606, 608; Cornell v. Dakin, 38 N. Y., 253, 256.) What the statute was intended to prevent was the taking of unlawful advantages' in this respect by persons exercising official authority, and in that manner obtaining obligations or securities they were not entitled to exact. In a word, it was to prevent official oppression. And if it had been shown that the deputy made use of his authority to secure or obtain the agreement relied upon in this case, it would be clearly inoperative and void within this provision; but nothing of that kind was suggested or shown. It was not claimed that the deputy, by reason of his levy or authority under the execution, coerced the. judgment-debtor into the making of the agreement relied upon as a defense. But, so far .as the evidence extended, it was made voluntarily and for the convenience and at the suggestion of the debtor. It was deemed to be essential to his interest in the preservation of his business, and assented to by the officer for that reason. In that view it was not taken by him by color of his office, as those terms were used in the statute, and was not illegal or improper. The exercise of such power requires to be closely watched and carefully guarded, in order to prevent it from.being made a device for the pecuniary oppression of persons who may be brought within the . exercise of official authority; and that is as far as the Legislature have deemed it necessary to extend the statute upon the subject; beyond that it has left parties at liberty to enter into such arrangements as the safety or promotion of their interests may require; and that authority does not seem to have been transgressed in this instance.

The agreement did not include the fees of the auctioneer, and as they were to compensate a service which it was the duty of the officer himself to perform, they should have been disallowed at the trial; but of that no complaint has been made by the plaintiff, and its special consideration cannot, therefore, be required in the disposition of this case. As the agreement entered into for tho compensation of the keeper was held to be unlawful, and the amount paid on that account was rejected, the issue in the case will require that another trial shall be had, and if the agreement shall again prove to have been entered into at the instance ar.<3 for the convenience of the debtor, and not by color of the officer*!, authority over him, and it was in all respects just and fair, tl e amount expended under it 'ought to -be allowed. The point whether the attachment became a lien upon the fund need not nun be considered. For it may appear differently, from the fact already shown, upon another trial. The judgment and order should he reversed and a new trial ordered, with costs to abide the. event,

Potter, J., concurred.

Present — Ing-alls, P. J., Daniels and Potter, JJ.

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


text:
    JOSEPH SCHEIDER and another, Respondents, v. CHARLES T. CORBY, Appellant.

      Motion for new trial — denied, although the verdict for the plaintiffs did not give plaintiffs all their claim, nor all that was due them, if the,defe7idarit’s theory-was rejected.

    Appeal by the defendant from a judgment in .favor of the plaintiffs, entered upon a verdict of a jury, and from an order denying a -motion for a new trial made upon the minutes of the justice, before whom the action was tried.
    This action was brought to recover the balance claimed to be unpaid on an account for goods sold. The answer disputed the amount due, by contesting the accuracy of three different items, alleging the balance to be only the sum of eighty-four dollars and twelve cents, and as to that it relied upon a tender.
    After considering other objections, the court at General Term said: “ The jury, while they rendered a verdict for more than the amount tendered, did not give the plaintiffs all they claim, nor all their evidence tended to show to be owing, if the theory of the defendant was rejected. For that reason the motion was made to set aside the verdict. A similar result was obtained in the case of Wolf v. Goodhue Fire Insurance Go. (43 Barb., 400). But the court held that the verdict on that account could not be set aside, and the decision made was afterwards affirmed by the Court of Appeals. (41 N. Y., 620.) This authority disposes of the same point made on behalf of the defendant in this case.”

      Fdwin G. Davis, for the appellant. Lyman Dyndslcopf, for the respondents.
   Opinion by

Daniels, J., Ingalls, P. J., and Potter, J.,

concurred.

Judgment and order affirmed, with costs.


author: per Curiam.

text:
    DANIEL MESSMORE, Respondent, v. ELLEN A. HAULENBEEK, Appellant.

      Authority to insert clause to charge separate estate of .married woman — must be express.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury. The action was brought upon three promissory notes given by the defendant for the balance of bills for groceries. The defense was that the defendant was a married woman; that the notes were executed by her in blank and given to her husband; that he delivered them to one Packard, who inserted the name of one Peterson, in whose name the groceries had been sold, as payee, and also inserted the following clause: “This amount being for my own use and benefit, and I hereby charge my sepa' rate estate with, and for the payment, of this amount.”
    With reference to the question of his authority to insert this clause, the court at General Term said : “ To entitle the plaintiff to recover in this case, it was necessary that he should establish an express authority from the defendant to fill in the blank, notes with the special provision charging her, separate estate. (Taddi-Icen v. Cantrell, 69 N. Y., 597; Stxiart v. JTissam, 2 Barb., 493; Hoffman v. Treadwell, 2 Sup. Ct. [Thomp. & Cook], 57.) The court submitted it to the jury to find an implied authority, and it is quite probable that the case was disposed of by the jury, without passing upon the question whether or not any express authority was given. We think it was- error to have submitted the case in that form to the jury, and that there should be a new trial, with costs to abide the event.”

      A. P. Whitehead, for the appellant. Moody B. Smith, for the respondent.
   Opinion

per Curiam.

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

Jud ament reversed: new trial ordered; costs to abide event.


author: per Ouriam.

text:
    CHRISTIAN F. A. DAMBMANN, Plaintiff, v. FREDERIC BUTTERFIELD and others, Defendants.

      Order far a second examination of a party before trial — only granted upon special facts being shown justifying the re-examination.

    Appeal from an order vacating one directing an examination of the defendants Armstrong' and Quinan before trial. The court at General Term, after holding that as to the defendant Armstrong the order was regular, and should not have been disturbed, said: “As to the defendant Quinan it appears, by his own affidavit, that he had once been summoned on a similar order, and examined and dismissed by the plaintiff’s attorney, after several adjournments, from further attendance. The second order should not have been made for his examination without showing to the court that some new facts had been developed requiring his further examination, either because of material omissions in the former examination, or that his examination had become important upon new questions. After one examination has been had under such an order, the court should not permit another without special grounds shown. We think the order 'below should be reversed as to the defendant Armstrong, and modified as to the defendant Quinan, by directing that the plaintiff have leave, upon showing sufficient facts to justify his re-examination, to apply for a new order, and, as modified,' affirmed, without costs of this appeal.”

      William Watson, for the plaintiff. A. J. Vanderpoel, for the defendants.
   Opinion

per Ouriam.

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

Order reversed as to the defendant Armstrong, and modified as to the defendant Quinan, by directing that the plaintiff have leave, upon showing sufficient facts to justify his re-examination, to apply for a new order, and, as. modified,, affirmed, without costs of this appeal


author: Tappan, J.:

text:
    MANNING R. ROLL, Respondent, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Contributory negligence — where ■ a desperate alternative is presented, — Gare required, of an employee, and from, another.

    An employee of a¡raiIroad, lawfully using its tracks over which another company has a right of way, has a right to act upon the presumption that the latter company will conform to the rules, such as to giving signals, etc., prescribed by the company, by permission from which it uses such tracks.
    When one is forced to a desperate- alternative through the negligence of a. railroad company, and is injured in his efforts to prevent injury to others, he is not guilty of such contributory negligence as will prevent a recovery for the injuries sustained by him, although his own act was the direct and immediate cause of such injuries, unless such act would constitute rashness in the judgment of a prudent person.
    When the negligence of the railroad company has placed a person in such a situation that he must adopt a perilous alternative, the law does not demand of such person the accuracy of judgment required under other circumstances.

      Semble, that the same degree of care is not required of an employee engaged in his duty upon the .track as from a person crossing the track.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury; and from an order denying a motion for a new trial, made upon a case and exceptions.

      George M. Riven, for the appellant.

      Smith, Robertson é Fassett, for the respondent.
   Tappan, J.:

This is an appeal by the defendant from a, judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The defendant and the Erie Railway Company occupy and start their trains from the same depot in the city of Elmira. By means of a third rail, the defendant runs its trains from the track of the Erie Railway Company, from said depot, south to “the junction,” where defendant’s road branches off to the southwest. About eighty rods south of the depot the Erie track crosses the Chemung river, and about eighty rods south of the river is the junction before mentioned. Between the jmiction and the bridge there are five streets crossing the track, all within the limits of the city of Elmira; the junction is just outside the city line. The shops and round-house of the defendant are about a quarter of a mile south, and west of the junction. The defendant’s trains are made up at the shops; the trains going south then back over to the depot, crossing the junction and coming upon the track of the Erie company to reach the depot, where the passengers are taken on. Just south of the bridge over the Chemung. river, the Erie company had a shanty, in which was stored paints and materials used by the painters in the employ of that company. The plaintiff was foreman painter of the Susquehanna division of the Erie road, having a gang of men under him-, and was furnished with a hand-car, which was lettered “painters’ car.” He was also furnished with switch keys, and had the right, and - it was his custom, and it was the custom of other foremen with hand-cars on the Erie road, to occupy the track • with their handcars, at all times and places, and to stop trains whenever necéssary, keeping out of the way of passenger trains, so far as possible, with instructions not to stop- any train when they could avoid it. Such foremen were in the habit, when necessary, of stopping trains by a motion of the hand, the swinging of a hat, or any signal of danger.

On the-morning of the 8th of March; 1875, the plaintiff was going, by orders, to paint certain bridges of tbe Erie company, in Big Flats, and proceeded with his hand-car and gang to the shanty, just south of the bridge, to get a barrel of paint and a ladder. These articles were intended to be sent to Big Flats by the way train, which would leave the depot in that direction' at 8.40 a. m. To have them sent by such train, they would have to be billed and shipped. Plaintiff’s time was short, and he was in a great hurry. Plaintiff did not know the time that defendant’s train, to leave the depot at Elmira at 8.35 a. m., backed over; but did know “that this train was in the habit of backing over in the morning.” There was no such train on the time-table of the defendant or the Erie Railway Company.

When plaintiff and his men reached the shanty they all looked down the track; there was no train in sight, and the signal ball at the junction was not up to indicate that defendant’s train was soon to back over to the depot. The track of the Erie road was visible from this point for a mile and a half; the track of the defendant only to the junction, about eighty or one hundred rods. Plaintiff had opened the shanty and put part of his load upon the hand-car, and was getting the barrel of paint, when Giddings, one of the plaintiff's men, discerned defendant’s train backing over, and inquired, “what is that coming?” Plaintiff looked and saw the train backing down upon the track upon which the hand-car stood, within a square and a half or two squares of the shanty. Ho dropped the barrel of paint, and he and three of his men signaled the train by throwing up their hats and hallooing, and making other signals. The train did not slacken speed at all. Plaintiff said : “Men, let’s get the car off.” They took hold of the hand-car, plaintiff and his men being with their backs toward the car, facing toward the coming train; they got the wheels of one end off, when they became alarmed by the near approach of the train, and abandoned the effort, and attempted to get out of the way. Two of the men escaped; plaintiff was caught by the train, crushed under the rear end of defendant’s coach, and in that way himself and the hand-car, two wheels of which were off the track, were shoved along the track and part way across the bridge over the Chemung river, for a distance of over 300 feet, the train moving at the full speed at which it had approached, until its whole length had passed the place of the accident. Both bones of plaintiff's right leg were broken in several places, the knee-joint crushed and broken, his foot mashed and broken. The injury to the knee-joint is permanent and destroys its use. This leg, by the injury, was made shorter than the other, is well-nigh worthless, and, according to the evidence, he will never recover the use of it, but will be a cripple for life. He can now only walk with a cane. Plaintiff was forty-three years of age; his trade required him to be on ladders incessantly; he cannot now go up and down ladders, and does not attempt it. Two witnesses testified that if this hand-car had been left upon the track it might have thrown the train off.

There was a conflict in the evidence at the trial upon several important points which bore upon the question of the defendant's negligence. Plaintiff proved the published rules of the defendant, which took effect November, 1874, and were in force at the time of the injury to plaintiff, as follows :

Rule 30. “Each passenger train, while running, must have a bell-cord attached to the signal bell of the engine, passing through or over the entire length, and secured to the rear end of the train.”

Rule 60. “ The engine bell must be rung from a point one-quarter of a mile from every road-crossing, until the road-crossing is passed, and the whistle must be sounded at all road-crossings at grade whore whistling posts are placed.”

Rule 93. “ When a train is run backwards (except when shifting and making up trains in yards), the conductor must station himself on top of the rear car, or in a position so conspicuous as to perceive the first sign of danger, and give immediate signal to the engineman.”

Rule 103. “Passenger trains shall be drawn, not pushed, except in case of accident or other emergency.” * * *

Rule 181. “When not engaged in other duties, they (brakemen) shall stand at the door of the car, ready to respond to the signal of the engineman, and they must occupy this position whether the train is equipped with air-brakes or not.”

Defendant proved that the brakeman gave the signal to stop the train ; that one of the snaps or couplings of the bell-cord caught in the tin roof of one of the cars, and thus prevented the engine-man from receiving the brakeman’s signal; that the engineer could not see the track in rear of his train, and did not get any warning until after the collision, when he was signaled by a bystander ; that the train was running about ten miles an hour. The plaintiff’s evidence tended to prove that the train was being backed at this Sliced and across the streets, as before mentioned, without any signal by whistle or bell, with nobody on the rear of th# train or elsewhere on the lookout for signals or obstructions ; that there was no one on the inside of the rear car, which was locked ; that the train men were not at their posts, but scuffling on the engine. Defendants witnesses Rarick, Slair, Albro and Hildreth testified that they were in the rear end of the car, which was foremost, as the train was backed, and tried to signal the engineer. The evidence of the plaintiff upon this point was from witnesses who said they were on the lookout, but did not see these men and thought they were not there. Although this evidence was of a negative character, the jury were authorized to give it the force of affirmative testimony, in connection with the positive testimony, that the rear car was locked. (Renwich v. N. Y. C. R. R. Co., 36 N. Y., 132; Bradley v. Mutual Benefit Life Ins. Co., 45 id., 422.

The court submitted to the jury the questions : First. Whether the defendant’s agents in running the train were guilty of any negligence 'which contributed to the injury complained of. Second. Whether the plaintiff was free from negligence. The court further charged the jury, under the last point stated, that if the train was so close that the plaintiff could see that there was danger, and that he could not with safety attempt to get this hand-car off the track, he had no right to do it; he had no. right to hazard himself to save the property; and if he did so, if the jury believed that a reasonable man would not have done such a thing, that it was a hazardous transaction, as he then understood and believed, and his object was simply to save the property of the company, for that ^purpose and for that alone, then the plaintiff could not recover ; that the jury were to say whether at the time he went upon this track, this train, was so close that he could reasonably believe and feel assured that he could get the hand-car off the track with safety ; and that unless he believed he could do it with safety he was guilty of negligence, unless he did it for the purpose of saving human life, or some human being from injury, and submitted to the jury whether plaintiff had' reason to suppose that if the hand-car was left upon the track it would throw tho train off; also, whether the plaintiff knew that there was any ■body upon the train who was likely to be injured in consequence of such an occurrence ; also, that if plaintiff supposed that there was some one upon the train who would, with reasonable certainty, be injured in consequence of the hand-car being left upon the track, and ho was willing to risk his person in an effort to get the hand-car off, for that purpose only he would be justified iu doing so, and he would be entitled to recover so far as this question, was concerned. The defendant’s counsel requested the court to charge the jury, that the plaintiff could not recover if he voluntarily placed himself in the position described ; the court declined to charge otherwise than ás above stated upon that question. Defendant’s counsel also requested tho court to charge the jury, that the plaintiff was not justifiable in placing himself in a position of danger, unless he actually sato some person in imminent, personal peril; the court declined to charge differently than as above stated on that point; defendant’s counsel excepted to the refusal to charge as requested.

The evidence in the case was sufficient to justify the jury hi finding that tho defendant’s servants were guilty of negligence, in running the train at tho time and in the manner thereby shown, when the plaintiff was injured. The more serious question in the case is whether the plaintiff was guilty of such contributory negligence as prevents a recovery for the injuries received by him. Being an employee of the Erie Railway Company, ho had the right to go upon the track of the company to obtain and transport the material necessary for use in the employment in which he was engaged. In using the track for that purpose, it was his duty to conform to the rules prescribed by his company for the government of all its employees engaged in running trains on the road, and he had the right to act upon the presumption that the other employees of such company, or those who run trains upon its tracks by its permission, would conform to such rules. (Newson v. N. Y. Central R. R. Co., 29 N. Y., 383; Coughtry v. Globe Woolen Co., 56 id., 124; Dolan v. D. & H. Canal Co., 17 Alb. L. J., 36; Jetter v. N. Y. & Harlem, R. R. Co., 2 Keyes, 154.) If the defendant had customarily given the statutory signals, ’ in passing crossings, while running upon that part of the track from the junction to the depot, the plaintiff had the right to assume that the signals would be given. (McGrath v. N. Y. C. & H. R. Railroad Co., 63 N. Y., 522; Ernst v. H. R. R. R. Co., 39 id., 61; St. Peter v. Denison, 58 id., 416; Weber v. N. Y. C. & H. R. R. R. Co., id., 451; Johnson v. Belden, 2 Lans. Opin., 437.)

The defendant by its negligent act having caused the circumstances of peril and created the emergency, is not released from, responsibility because the plaintiff did not exercise the soundest discretion in his efforts to obviate the consequences of its fault; when danger is imminent the law does not demand that accuracy of judgment required under other circumstances. The defendant’s negligence, having placed the plaintiff in such a situation that he must adopt a perilous alternative, the defendant is responsible, although the plaintiff’s act in the emergency was the direct and immediate cause of his injury. (Stokes v. Saltonstall, 13 Peters, 181; Wilds v. H. R. R. R., 33 Barb., 503; Collins v. Albany & Sch. R. R. Co., 12 Barb., 492; Buel v. N. Y. C. R. R. Co., 31 N. Y., 318; Dyer v. Erie R. Co., 5 W. Dig., 430; Coulter v. Am. M. U. Express Co., 56 N. Y., 585; Eckert v. Long Island R. R. Co., 57 Barb., 555; S. C., affirmed on appeal, 43 N. Y., 502.) In the latter case, this court and the Court of Appeals examined and decided the question as to how far a person is justifiable in voluntarily placing himself in a place of danger to preserve human life, and held that the law will not impute negligence to an effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons.

In that case the plaintiff seeing a young child upon the track of the defendant’s railroad, and liable to be killed by an approaching train, seized it, and threw it clear of the track on the side. opposite to that from. which he came, but continued across the track himself, and was struck by the locomotive and received injuries from which he died. The administratrix of the deceased brought an action to recover damages for his death. In that case, as in this, there was a motion for a nonsuit at the close of the evidence, based upon the apparent contributory negligence of the defendant, -which the Court of Appeals held was properly denied. Negligence on the part of the defendant was clearly proved, The court was requested to instruct the jury, that if the defendant voluntarily placed himself in peril from which he received the injury to save the child, whether the child was or was not in danger, plaintiff could not recover. The requests were refused, and the question whether the negligence of deceased contributed to the accident was submitted to the jury. The jury found a verdict for the plaintiff, and the recovery was sustained. Upon this point in the case at bar, the justice at the Circuit seems to have followed the doctrine of that'case. It can make no difference in the application of this doctrine, whether the party acted to save the life of another in view upon a railroad track, upon which a train was approaching, or to save the life of one or more persons upon a railroad train not in view, but known to be on such train, by preventing the train from being thrown from the track. "We think the court properly refused to charge as requested in these particulars. The court also properly refused to charge that the same degree of care is required from an employee engaged in his duty upon the track, that is required from a person crossing the track, or from one not an employee going upon the track for any purpose. (Ominger v. N. Y. Central & H. R. R. R. Co., 6 N. Y. S. C. R. [T. & C.], Opin., 500.) For the reasons before stated the court properly refused to charge; that for the purposes of this case it was not material whether the statutory signals were given. The defendant’s counsel has not argued that any of the rulings upon the reception or exclusion of evidence were improper, or that the verdict was excessive.

We think the case was properly submitted to the jury, and that the verdict is right, and judgment should be affirmed, with costs.

Present — Learned, P. J., Boardman and Taepan, JJ.

Judgment and order affirmed, with costs.


author: Tappan, J.: Clerk, J.,

text:
    LEVI S. BURCH and others, Appellants, v. ELIJAH SPENCER, Survivor, etc., and Administrator of MORGAN SPENCER, Deceased, Respondent.

      Sale of artieles, to be used for food — implied warranty on.

    In all cases of an executed contract of sale of articles of food, when the vendor has personal knowledge of the quality and condition of the articles sold, which are not known to the purchaser, and knows that the purchaser intends to use the articles for food, or to sell them to others to be used for that purpose, the law implies a warranty that the articles are sound, wholesome, and fit to be used as articles of food.
    The plaintiffs, who are engaged in buying and packing meat and pork, to be sold at wholesale and retail as an article of food, purchased, through an agent of defendant; the meat of a hog, at the highest market price for pork to be used as food, and paid therefor. Defendant knew it was to be used as food, and before the sale, and in the presence of the agent, denied that the carcass was that of a boar, although such was the fact. The flesh of a boar is unfit for human food, and is used only for grease or oil, and is worth much less than that fit to be eaten.

      Held, that there was an implied warranty that the hog was fit to be used forjood, and that for a breach thereof plaintiffs could recover the damages sustained.
    Appeal from an order of the County Court of Broome county, denying a motion for a new trial on a case and exceptions, and affirming a nonsuit ordered at the trial. The action was originally brought against Morgan Spencer and Elizabeth Spencer. After an appeal was taken from the County Court of Broome county, Morgan Spencer died, and letters of administration, with the will annexed, were issued to Elijah Spencer, as administrator of his estate, who, as such administrator, was, by order of the County Court, made a party defendant in the place of said deceased.

      B. T. Wright, for the appellants.
    In contracts for provisions, it is always implied that they aro wholesome. (3 Black. [Cooley’s ed.], 165, bottom paging, 109; Hart sí. Wright, 17 Wend., 272; French v. Vining, 102 Mass., 105; Devine v. McOcn'micJc, 50 Barb., 116; Van BracJclin v. Fonda, 12 Johns., 468; Hoe v. Ban-born, 21 N. Y., 561; People v. Par Jeer, 38 id., 86; 2 Addison on Contracts [3 Am. ed.J, section 621.)

      W. H. Hecox, for the respondent.
    There was no warranty given on the sale, and no fraudulent representations were made; and the defendants were not liable on a warranty, nor for deceit. (Qarley v. ~Wylhins, 6 Barb., 557; Hotchkiss v. Gage, 26 id., 141; 1 Iiilt., 266; Nichols v. Pinner, 18 N. Y., 295; Henry v. Henry, 8 Barb., 588.) There was no implied warranty of wholesomeness or soundness raised on the sale. It is only when provisions are sold “for immediate domestic use ” that an implied warranty of their wholesomeness is raised. (Moses v. Mead, 1 Den., 378; aff’d in 5 id., 617; Potter’s Ed., Willard’s Eq., 158; 1 Pars, on Cont. [5th cd.], 588, note c.; Hoe v. Sanborn, 21 N. Y., 560; Burnby v. Bollett, 16 M. & W., 644.) It was merchantable as soap grease. (Wright v. Hart, 18 Wend., 454.) The rule of caveat emjptor should be applied to. this sale. (Duffendorf v. Gage, 7 Barb., 18; Hotchkiss v. Gage, 26 id., 141; Iloev. San-born, 21 id., 563; Bartlett v. HojjjjocIi, 34 id., 218; 2 E. D. Smith, 34.)
   Tappan, J.:

This action originated in a Justice’s-Court, in Broome county, where the defendants had a verdict and judgment in their favor. The plaintiffs appealed from such judgment to the Broome County Court for a new trial, where a trial was had before a jury, and judgment of nonsuit entered, with costs. Plaintiffs then moved such court for a new trial, which motion was denied; from such order plaintiffs appeal to this court. The order is appealable as affecting a substantial right, and the appeal brings up the question whether, upon the case made on the trial, the nonsuit ought to have been granted. (4 Wait’s Pr., 342.)

The complaint alleges that the plaintiffs were copartners at Marathon, N. Y., under the firm-name of Burch, Burgess & Co., doing business there in buying and packing meat and pork for-shipment and sale at Now York and other markets for food, the defendants well knowing such fact; that the defendants offered to-deliver to the plaintiffs, for the purpose aforesaid, the meat of one hog, and to induce the plaintiffs to purchase the same, warranted• and falsely and fraudulently represented to the plaintiffs that the said meat or pork of said hog was of good, merchantable quality,.. fit and proper for food and for packing for such markets and such use; that in consequence of such representations plaintiffs purchased the meat of such hog, and paid therefor the sum of $26.60; that such meat, at the time of said sale, was not good and of merÍchantadle quality, and was not fit and proper for food, nor for packing for such markets, but was of bad, unsalable and unmerchantable quality, and was not fit or proper for food, or for packing and shipping in the markets before mentioned, nor in any market for food; that the same was stale, strong, unsavory, disgusting, unpalatable meat or pork; that the same was boar meat, and tainted with the unsavory quality, taste and smell of the same, rendering it unfit for food, or for packing for food, as de- ' fondants at the time of the sale well knew; that said meat or pork, if of the kind and quality warranted and represented, would have been of the value of $45, but in fact was of no value to plaintiffs; that by reason of the sale, plaintiffs bestowed care, attention, labor and material upon such meat or pork of the value of $15, which was lost. Defendants answered, denying the complaint.

It appeared upon the trial in the County Court, that plaintiffs, in November, 1871, were partners at Marathon, Cortland county; that their business was buying and packing pork, mostly for home consumption; that they sold not only at wholesale, but at retail; that portions of the meat packed by them was sold to their immediate neighbors for food; that the loins and spare-ribs were sold to their neighbors for fresh meat, and so used by them; plaintiffs smoked the hams, and retailed what they could in the neighborhood, and wholesaled the rest; plaintiffs also used from the fresh pork themselves; that the pork bought by plaintiffs was for food for mankind, and for no other purpose, and there was evidence tending to prove that the defendants knew it.

It also appeared that one Jabez Johnson, an agent of plaintiffs, at Whitney’s Point, purchased the hog in question for them, in November, 1871. The price paid was five cents per pound — the highest price paid that season for pork to use as food. On the day of the sale, and before the purchase, defendants claimed to Johnson that they were going to send the hog to New York with a box of poultry; and the same day after the hog had been bargained for, blit before weighed, delivered, or paid for, one of the defendants, in the presence of the other and of Johnson, when one Rogers suggested that the pork was that of an old boar hog, denied the fact. Immediately after, the hog was delivered and paid for. The hog was nicely dressed, as hogs are dressed when intended for food; the testacies were removed by the defendants, on the day the hog was butchered; the sacks containing them, except a small piece of-one of them, had also been removed; this could only be detected by close inspection. The tusks had the appearance of having been broken off but a short time before.

The meat of a boar hog is unfit for food for man; it had never been worth more than one cent per pound, and that for grease or lard oil only. Defendants knew the quality of this class of meat, and the use to which it could be put, and before plaintiffs’ agent applied to purchase the pork in question had intended to dispose of it for such purpose. It also appeared that a person, although acquainted with boars, might be deceived; they were sometimes bought by experienced men without knowing it. Plaintiffs’ agent bought the hog for merchantable pork for food. Upon trial the meat of the hog purchased could not be used, and immediate notice was given to defendants.

The County Court held that the plaintiffs could not maintain this action on the ground of fraud in the seller, because the action is based upon a contract, and not upon fraud; that there was no evidence in the case of an express warranty made by the defendants to the plaintiffs respecting the quality of the hog in question. Plaintiffs asked to amend their complaint and set up a charge of fraudulent concealment, in connection with the complaint as it stood. The motion was denied. Plaintiffs then asked to go to the jury upon the question of fraud in the complaint as it stood. The court denied the request. The plaintiffs then asked to submit to the jury the question whether there was sufficient evidence for them to find an implied warranty, and claimed that there was sufficient evidence that defendants knew, at the time of the sale, that the hog was purchased for food for man. The court denied the request, and granted defendants’ motion for a nonsuit, to each of which rulings plaintiffs duly excepted.

Wo think the County Court was right in holding that the complaint is for a warranty, and not upon fraud, and in denying the plaintiffs’ motion to amend it in such manner as to change the character of the action from contract to tort. At the last May-term of this court it was held that the County Court, in a case where a new trial was had on appeal from Justice’s Court, could not allow an answer interposed in Justice’s Court, consisting of a general .denial, to be amended by inserting therein new and affirmative defenses, such as payment, set-off, or counterclaim; that no amendments should be allowed which would entirely change the issues in the court below, but only such as would enable the parties to try such issues. (Reno v. Millspaugh, 21 N. Y. S. C. R., 229.) The complaint is sufficient to sustain an action upon an implied warranty. The general averment therein that the., defendants warranted the article sold is sufficient; under such averment, an implied or express warranty could be proven. (Hoe v. Sanborn, 21 N. Y., opinion, 555.) The contract was executed, and there was no express warranty. In such a case, no warranty of any kind can be implied from the fact., that a sound price was paid, as was said in Moses v. Mead (1 Denio. 378); S. C., affirmed in Court of Errors (5 Denio, 617). Caveat emptor, and not caveat venditor, is the rule of the common law, and that is our law.

In that case, in August, the plaintiffs, being merchants and dealers in provisions in the city of New York, bought of the defendants, Avho were wholesale grocers and provision merchants in the same city, 194 barrels of mess beef, and paid therefor the regular market price for good, sound, wholesome mess beef. The beef had been inspected by a NeAV York inspector in June before, and branded- “mess beef,” and the inspector’s bill was shown to the plaintiffs at the time of the sale. The plaintiffs examined one barrel of the beef, and might have examined more, had they chosen to do so. The beef Avas delivered on the day of the sale, and the purchase-price paid the next day. There Avas no express warranty by'the defendants, nor was there any express agreement by the plaintiffs to take the risk of soundness, but the beef was bought and sold at the price of, and believing it to be, good, sound, sweet and wholesome mess beef. It was bought by the plaintiffs as provision merchants, not for consumption in their oAvn families, but to be sold to their customers, in the usual course of their business. The beef was, in fact, unsound, sour, tainted and unwholesome as food for mankind, by reason whereof plaintiffs sustained damages. In that case, it was hold that the beef was sold as merchandize, and that there was no implied warranty of soundness.

In giving the reasons for the decision, the court state that, on a sale of provisions for immediate consumption, the vendor may be hold responsible, in some form, for the sound and wholesome condition of the articles which he sells; that it is not, perhaps, too much to presume that butchers, grocers and others, who furnish by retail the usual supplies for the families of customers, are, from the nature of their employment, acquainted with the quality of the articles in which they deal; but there is a very plain distinction between selling provisions for domestic use and selling them as articles of merchandize, which the buyer does not intend to consume, but to sell again. Such sales are made in large quantities, and with less opportunity to know the actual condition of the goods than ichen they are sold by retail. This judgment was affirmed in the Court of Errors by an equally divided court.

It was said by Selden, J., in Hoe v. Sanborn (21 N. Y., opinion 555): “ It is a universal doctrine, founded on the plainest principles of natural justice, that whenever the article sold has some latent defect, which is known to the seller, but not to the purchaser, the former is liable for this defect, if he fails to disclose his knowledge on the subject at the time of the sale. In all suc-h cases, where the knowledge of the vendor is proved by direct evidence, his responsibility rests upon the ground of fraud. But there are cases in which the probability of knowledge on the part of the vendor is so strong, that the courts will presume its existence without proof; and, in these cases, the vendor is held responsible upon an implied warranty.”

In Van Bracklin v. Fonda (12 J. R., 468), it was held that the sale of a quarter of beef from an animal slaughtered for fear she would die, concealing the fact that the animal was diseased, was equivalent to the suggestion of a falsehood that she was sound.

In Divine v. McCormick (50 Barb. S. C. R., 116), plaintiff bought a heifer of defendant,' which he told defendant he was going to kill the next day. The heifer when butchered was found to bo diseased; the disease wTas not visible externally. There was evidence given tending to show that the defendant knew, or had reason to suspect the diseased condition of the heifer at the time of the sale. The jury in Justice’s Court rendered a verdict for the defendant; the County Court revei’sed the judgment, and the judgment of the latter court was affirmed by the General Term of this court. In The People v. Parker (38 N. Y., 85), upon an indictment for selling unwholesome beef knowing it to be such, the defendants’ counsel requested the court to • charge the jury, that if they should find that the beef was purchased as an article of merchandize, and not for consumption, then the indictment could not be sustained. The judge refused to so charge, and the jury found the defendant guilty; the Court of Appeals held the conviction proper and affirmed it.

Clerk, J.,

who delivered the opinion of the court in the case, says, at page 87 : “I do not see why a man who knowingly sells unwholesome and diseased beef for human food, should be absolved from guilt because he was not informed of the particular individuals who were to suffer from the use of it.” In the case at bar, as has already appeared in the statement of facts proven, the defendants knew that the pork offered for sale to the plaintiffs’ agent was the pork of a boar; that such meat was unwholesome and unfit for food for man. They also knew from the price the plaintiffs paid for the pork, and the fact that Rodgers proposed to buy some of the meat for food, that the same was intended for food - for man, and not to be manufactured into grease or lard oil, the only use it could have been properly put to. They concealed and denied the fact that the animal which they were so selling was a boar. The circumstances of the case arc such that the law implies a warranty on the part of the vendor, that the meat offered for sale was not that of a boar, and was of a character fit and suitable for food for man. (3 Blackstone [Cooley’s ed.], 165.) I believe that this view of the case is in strict accordance with public policy, which requires that only articles that are sound, wholesome and fit for use, shall be knowingly sold for food, and that in accordance with such policy the law- implies a warranty in all cases of an executed contract of sale of articles of food, that the same are sound, wholesome, and fit for use as such; where the vendor has personal knowledge of the quality and condition of the articles sold, not known to the purchaser, and that the party purchasing intends to use the articles for food, or to sell them to others to be used for the same purpose.

Judgment should be reversed and new trial ordered in the County Court, costs to abide the event.

Present — Learned, P. J., Boardman and Tappan, JJ.

Ordered accordingly.