text:
    Adam Klock et al., App’lts, v. The New York Central & Hudson River R. R. Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Railroad—Fences.
    The plaintiff owned a farm on the bank of the Mohawk river through which the defendant’s road ran. He sold to the defendant the piece which laid between its road and the' river, but reserved a right of way over the lands to reach an island which he owned in the river. This right of way or road crossed the railroad at gradé. At the crossing the defendant maintained gates. R maintained a fence on the side of its tracks towards the plaintiff’s premises, but not upon the side towards the river. The plaintiff’s cows coming from the island over defendant’s lands were injured by a train. Held, that under chap. 140, Laws of 1850, as amended by chap. 283 of Laws of 1854, the defendant was required to maintain a fence along its road upon the side towards the river, although it owned the land upon that side.
    2. Same—Natural barrier—When it excuses fencing.
    The court could not say as matter of law that the river was such a natural barrier as relieved the defendant from its duty to fence its road along its tracks on the river side.
    This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at the Montgomery circuit
    The action was brought by the plaintiff to recover the value of four cows belonging to plaintiff which were killed on defendant’s railroad track by a train of cars.
    6r. S. KlocJc, for app’lts; G. D. Prescott, for resp’t.
   Mayham, J.

Prior to September 3, 1873, the plaintiff Klock was the owner and occupant of a farm on the north side of the Mohawk river in the county of Montgomery, through which the defendant’s railroad, roadway and track passed. On that day Klock conveyed to the defendant a strip of land lying between the roadway and the river in an oblong form of about seven and one-fourth acres. Previous to such conveyance the defendant had maintained a farm crossing at grade across the railroad for the convenience of the Klock farm.

In the deed from Klock to the defendant it was provided that the defendant should maintain the crossing over its road to enable the defendant’s grantor to pass to and from an island of about eight acres owned by him in the river and lying opposite the land granted to the defendant.

The width of the land conveyed to' the defendant' from the farm crossing to the northerly bank of the river was a distance of about 150 to 175 feet, and the distance from the northerly bank of the river,, opposite the farm crossing, to the island was about 350-feet, so that the distance from the crossing to the island was. about 525 feet and the land conveyed by Klock to the defendant was bounded on the south by the north shore of the river, between which and the railroad the defendant maintained no fence, but on the north side of the railroad and between it and the Klock farm a fence was maintained. East, and west of the farm crossing and at the crossing there was a gate. The island was used for meadow in the summer and pasturage in the fall after the hay crop was harvested.

On the morning of the 23d of September the plaintiffs by their servants, drove thirty-five cows belonging to the plaintiffs across this farm crossing and through the north branch of the river to the island, and at about four o’clock in the afternoon of that day one of the plaintiffs’ employees opened the gate on the north side of the railroad and passed down to the river and standing upon its north bank on the defendant’s land called the cows and they came from the island, and as twelve of the cows came upon the north bank of the river on defendant’s land, he was notified of an approaching express train, coming from the west on defendant’s railroad, when he ran to the railroad followed by the cows, where he tried to signal- the train and also to prevent the cows from going upon the track, but failed in accomplishing either, and four -of the cows passed upon the track and were hit by the locomotive and killed.

On the trial at the conclusion of the plaintiffs’ evidence establishing these facts the defendant moved the court to nonsuit the plaintiffs. The plaintiffs insisted upon submitting to the jury the question of defendant’s negligence also the freedom of plaintiffs from contributory negligence, and also the question of defendant’s liability for not constructing a fence as required by the statute.

The court declined to submit the question to the jury and granted a nonsuit.

. The principal and perhaps the controlling question in this case is whether the defendant is liable for failing to fence its railroad track, as required under the provisions of the general railroad act, chapter 140 of Laws of 1850, as amended by § 8 of chapter 282 of the Laws of 1854. That section provides as follows: “ Every railroad corporation * * * shall * * * erect, and thereafter maintain fences on the sides of their roads, of the height and strength of a division fence as required by law, with openings, or gates or bars therein at the farm crossings of such railroad, for the use of the proprietors of the lands adjoining such railroad. * * * And so long as such fences '* * * shall’ not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damage which shall be done by the agents or engines of any such corporations to any cattle, horses, sheep or hogs thereon, * * * but no railroad corporation shall be required to fence the sides of its road except when ■such fence is necessary to prevent horses, cattle, sheep and hogs from getting on the track of the railroad from the lands adjoining the same.”

Two questions may arise in construing this statute as applicable to this case.

First. Is the defendant, by this statute, required to fence its railroad track against the adjoining land of the company, so that the cattle trespassing upon it and straying thence upon the railroad track where they are injured shall be paid for by the company?

Second. Is the railroad company liable for not maintaining exterior line fences along its land not used for railroad purposes,,' but not divided from its railroad by fences along its track ?

The language employed by the legislature in imposing this obligation on railroad companies seems, clearly to indicate where-the fence required by the statute shall be located and maintained. “ They shall * * * erect and thereafter maintain fences on: the sides of their road,” etc. If that language is strictly followed, a company could not excuse itself by purchasing a large tract of land lying along their track and maintaining on the exterior line of' such tract, and at long distance therefrom a division fence between it and adjacent owners.

It is true that if such exterior fence furnished a complete barrier to any approach to the track by the animals named in the statute, the company .would be excused from constructing a fence-along the track under the concluding portion of the eighth section above quoted. In Kelver v. The N. Y., C. & St. Louis R. R. Co., 35 St. Rep., 673, it was held that the liability of the railroad company for animals killed by the cars where the railroad was not fenced upon the sides of the tracks did not arise out of any negligence of the company, but out of the failure to comply with the-provisions of the statute. This decision was affirmed by the court, of appeals in 126 N. Y., 365; 37 St. Rep., 485. In that case the-cattle of the plaintiff strayed from his farm across the unfenced railroad of another company, and then upon the railroad of the-defendant, which was also without fences along the sides of its-track, and the defendant was held to be liable for the loss suffered by reason of injury to the cattle. In this case the court hold,, that although the cattle after leaving plaintiff’s premises passed over other intervening lands before reaching the defendant’s railroad track, still as there was no intervening barrier to prevent them from reaching the defendant’s railroad, the defendant was not. excused from the statutory obligation to maintain a fence along-the side of its track. To the same effect is Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y., 641. From this examination-of the wording of the statute and the decisions construing the same, we are led to the conclusion that the first inquiry above-propounded must be answered in the affirmative, and that the defendant in this case was required, in order to protect itself from the consequences of injury to cattle, to construct fences along the-sides of its tracks even though the company owns the adjoining-lands ; unless there is some other physical barrier either artificial or natural upon which they can safely rely as a substitute for such fence. See, also, Rhodes v. R. R. Co., 5 Hun, 344, and Brady v. R. R. Co., 1 Hun, 378. This conclusion substantially answers the second question propounded above in the negative.

That a railroad company is not bound to maintain an exterior-line fence between its lands outside of, but adjoining its railroad lands and the lands of adjoining owners. Unless the manner in which the plaintiff used this crossing or the particular circumstances of this case take it out of the general rule and as matter of law exonerate the defendant from liability, the case should, have been given to the jury.

But it is insisted on the part of the defendant that the Mohawk river is a sufficient natural barrier between the plaintiff’s island and the railroad to relieve the defendant from its statutory duty of maintaining a fence along the side of the railroad track as to these plaintiffs, and that this case comes within the principle of the rule laid down in Schermerhorn v. Hudson R. R. R. Co., 38 N. Y., 103, and Dolan v. The Newburgh, Dutchess & Connecticut R. R. Co., 120 id., 571; 31 St. Rep., 852. In Schermerhorn v. H. R. R. R. Co., supra, it was held that the railroad company was not bound to fence its road along the banks of the river, or where it runs through channels of the river separated from the river by islands. But that decision seems to have been put upon the ground that by the charter of the railroad corporation, § 24 of chap. 216, Laws of 1846, which relieves the company from any obligation to maintain a fence “ when their railroad is constructed in the river,” the company is exonerated. In Dolan v. R. R. Co., supra, the plaintiff’s team was driven by his servant on a narrow strip of land between a mill and the railroad track, and the team was standing partly on this strip and partly on the land of the railroad company, and was left by the driver, when it escaped onto the railroad track, and was hit by a train of cars and killed.

The track was fenced along the railroad either way from the mill, and the distance from the platform of the mill to the lands of the railroad was four feet and ten inches, and' the majority of the court held that under the last clause of § 8, of chapter 282 of Laws of 1854, it was error for the trial court to refuse to hold that the railroad company was not required to fence its road at this point, upon the theory that the mill and the fences on either side along the road constituted a sufficient barrier to prevent animals from going upon the track, and brought the case within the provision of the above section of the statute, which is as follows: u But no railroad corporation shall be required to fence the sides of its road except when such fence is necessary to protect horses, sheep, cattle and hogs from going upon the track of the railroad from the lands adjoining the same.” But it is further urged by the defendant that the Mohawk river is a navigable river, and was a sufficient natural barrier, and that the court will take judicial notice of that fact.

In People v. The Canal Appraisers, 33 N. Y., 461, Davies, J., in delivering the opinion of the court, says: “ It is assumed and may be taken as conceded that the Mohawk river is one of the navigable rivers of the state and perhaps the court will take judicial notice that it is so.” In support of respondent’s contention it is urged that as division fences are not required by statute on the line of navigable rivers between riparian owners, by analogy they cannot be required along the side of railroad tracks, when a navigable river is so located as to constitute a barrier to prevent cattle from going upon railroads. That does not necessarily follow. No such exception is made in the statute. In Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y., 646, Peckham, J., says: “ The statute quoted was probably aimed at rivers or lakes through whose borders railroads may run and where fences would be unnecessary, or in other cases when high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle.”

In the case at bar we think the court was not authorized as maU ter of law to determine that such natural obstructions existed as to render it unnecessary for the defendant to construct the statu • tory fence along the sides of its road. That was a fact to be determined by the jury, under proper instructions from the court.

This case differs from the case of Potter v. N. Y. C. & H. R. R. R. Co., 60 Hun, 314; 38 St. Rep., 798. In that case the railroad company owned land adjoining its tracks between which and the track there was no road fence, and the lessee tethered his horse-upon it, the horse broke loose, wandered upon the track and was injured by being frightened by one of the defendant’s trains. The question arose between it and the tenant of the defendant,, who leased the defendant’s land when there was no road fence dividing it from the track. No principle under such circumstances would as between the lessor and lessee make the former liable to the. latter. We do not see that this case conflicts with the cases above: cited, but depends upon an entirely different principle.

On the whole we think this case should have been submitted to* the jury and that the non-suit was error.

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

Learned, P. J., concurs.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Harriet H. Vilas, Admr’x, et al., App’lts, v. Julia A. McBride et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Usury—Mortgage.
    An agreement under which a mortgagee receives in addition to legal in- * terest the manure made upon the premises, agreed to he worth $100 annually, is usurious and avoids the mortgage.
    2. Same—Parol evidence.
    Parol evidence is not admissible as against a warranty deed to show that, the grantee took the premises and agreed to pay mortgages upon them which were not recited in the deed.
    3. Same—Payment op interest—Effect on defense to a usurious mortgage.
    The payment of interest upon a usurious mortgage and insuring the-property for the security of the mortgagee does not prevent the debtor from subsequently showing usury.
    Appeal by the plaintiffs, the administrators of the goods, chattels and credits of Samuel F. Tilas, deceased, from a judgment against them in favor of the respondents, dismissing their complaint and for costs and discharging of record the mortgage set out in the complaint, entered in the Clinton county clerk’s office on the 12th day of January, 1891.

      Beckwith, Barnard & Wheeler (G. H. Beckwith, oí counsel), for app’lts; Bdgar T. Brackett, for resp’ts.
   Learned, P. J.

This is an appeal from a decision in an action of foreclosure. Two questions were submitted to the jury: the first whether the mortgage was usurious; the second, whether David McBride, grantee, assumed payment of the mortgage as part of the consideration. The jury found the first in the affirmative the second in the negative. The learned justice adopted these findings as correct and decided in favor of the defendants. It seems hardly necessary to add anything to the careful opinion written by him. But the amount involved is considerable and the points in the case have been strongly presented on both sides. We will' therefore state our views.

The bond and mortgage in question were executed November 9, 1867, by Hiram D. Witherill to Samuel F. Vilas, now deceased, for $8,000 payable in instalments; the last in 1871, with interest at seven per cent. The property mortgaged was the Witherill Hotel. The testimony of Mr. Wever is that when Witherill applied to Vilas for the loan, Vilas objected on the ground that, money was worth more than seven per cent, and that he could, not make the loan unless he had more than the legal rate; that, they then agreed that the manure from the house should be called worth $100 per year; and that so long as Vilas carried the mortgage he should have the manure from the house as extra interest. The hotel was opened in 1868. It was proved that Vilas did have-the manure year after year and that it was in fact worth $100 per year. In 1881 one Velsey kept the house and Vilas claimed the manure as his right, said he had it all along, but Velsey refused to let him have it unless he paid $50 per year, which he did for one year.

The plaintiff urges that as the house was not then finished, and. the manure would not be in existence until the house was finished, and as Vilas was to have it only as long as he carried the-mortgage, the contract was not usurious. The proof, however, establishes that this was intended as an additional compensation, for the use of the money, and it was actually received for many years. Where a contingent advantage is reserved to the lender without putting capital or interest in any kind of risk, the contract must be usurious. Barnard v. Young, 17 Vesey, 44; Cleveland v. Loder, 7 Paige, 557; Bast River Bank v. Hoyt, 32 N. Y., 119; Heidenheimer v Mayer, 42 N. Y. Supr., 506. There seems to be no room to doubt here that the agreement was that the lender should, at the least, have the probability of getting an additional advantage, and that this agreement was made in order that he might have more than the legal rate. We think the verdict and the decision on this point were correct.

The next question is whether, when Witherill sold the premises to McBride, the latter agreed, as part consideration, to pay this mortgage. On the face of the deed he did not. Witherill gave a warranty deed. The consideration expressed therein was $20,-000. No mention of the mortgage is made in the deed. No paper other than the deed was executed between the parties. The amount actually paid by McBride to Witherill was $6,000. The mortgage in question had been, or was then, reduced to-$7,000 of principal by a payment of $1,000 by Witherill, or Mrs. Witherill. There was another mortgage on the premises of $7,000. That also is not mentioned in the deed.

It is very evident, then, that so far as the deed goes, the land was not taken as subject to any mortgage, and the purchaser assumed the payment of no mortgage. Of course, mortgages were in fact upon the land. But the deed was a warranty deed, which bound Witherill to protect the title. If the deed had stated that the land was taken subject to the mortgage, then, of course, no eviction by virtue of such mortgage would be a breach of the covenant of warranty. Belmont v. Coman, 22 N. Y., 438. We do not see, therefore, why Witherill would not be liable on his covenant of warranty, should the defendants be evicted under a foreclosure of the mortgage. Hence, it would, seem, that paroi evidence showing that McBride took as subject to the mortgage, and still more, evidence showing that he assumed its payment, would vary the effect of the written instrument. See Marsh v. McNair, 99 N. Y., 174; Wilson v. Deen, 74 id., 536; Eastbrook v. Smith, 6 Gray, 579.

There are some cases in this state holding that the agreement of the purchaser to pay the mortgage may be shown by paroi. Taintor v. Hemingway, 18 Hun, 458; affirmed 83 N. Y., 610. It will be seen, however, in that case, that the conveyance was made, in terms, subject to the mortgage. So that the agreement by paroi of the purchaser did not vary the terms of the written instrument. The same facts existed in Murray v. Smith, 1 Duer, 412, where a similar doctrine was held. Such evidence was held to be only proving what the actual consideration was. It would seem that a different case must be presented when the grantor gives a warranty deed without mentioning the mortgage. Such is the view of Berdan v. Sedgwick, 40 Barb., 359; affirmed 44 N. Y., 626.

In the present case, however, the question does not arise. The learned justice allowed the plaintiff to give evidence tending to show an oral agreement on the part of McBride to pay the mortgage. On conflicting evidence the jury found that he made no such agreement. Their verdict and the decision of the learned justice are sustained by the evidence. The testimony of Mr. Wever who negotiated the sale, for Witherill with McBride is positive. He says, McBride declined absolutely to assume any mortgage of any name or nature on the property; that he, Wever, urged him hard to do this, but he positively declined. He insisted on a warranty deed and declined buying subject to the mortgages. He said there was usury in the mortgage and stated how it came to be so in regard to the manure. He said he wanted to take all the rights that Witherill had to defend against either or both mortgages. If he bought Witherill’s rights he would give $6,000, otherwise he would give less.

The opposing testimony is the statement of Mr. Newton that McBride told him that he had bought the property subject to this mortgage, which he assumed and expected to pay.

The jury were justified in placing more confidence in the testimony of the man who negotiated the contract than in the testimony of a witness to a mere admission of McBride. McBride may have said that the property was subject to the mortgage and he expected to pay it. But that he assumed the mortgage is in contradiction to the deed, as we have already seen. A.nd it is hardly possible that Mr. Wever, who desired to have McBride assume the mortgage, could be mistaken in saying that he failed to-accomplish this result.

In Bennett v. Bates, 94 N. Y., 354, the reason for holding a purchaser liable in cases like the present is discussed at length. But the fact on which such liability is based must always be the agreement of the purchaser to pay the mortgage or his recognition of its validity. Without such agreement or such recognition he assumes no liability personally and has full right to defend his land against an invalid incumbrance. Of course the grantor can in his conveyance subject the land to the payment of anything which he chooses; to the payment of a valid debt; to the payment of a claim which is invalid. But he has not done so in this case. On the contrary, he has warranted the title to the land without any reservation.

It is true that a consideration of $20,000 is expressed in the deed, which the testimony shows to be rather more than the actual value. But it is well known that the expressed is often not the real consideration. So in this case the actual consideration is shown by proof to have been $6,000. The plaintiff urges that as the nominal consideration was $20,000 and as only $6,000-was paid, it must be assumed that McBride was to pay the other $14,000 by paying these mortgages. But this at best is only slight evidence and is overthrown by the proof. Indeed, if the expressed consideration had been $6,000 it might with equal force-have been urged by plaintiff that the defendant bought only the equity of redemption subject to both mortgages. And perhaps it was to exclude such argument that the deed expressed as consideration the whole value, showing that McBride took all the rights which Witherill had to defend against this mortgage.

The subsequent acts of McBride in paying interest to Vilas and insuring the property for the security of the Vilas mortgage in no respect estop him from this defense. Payment of interest-on a usurious claim does not prevent the debtor from subsequently showing the fact of usury. As evidence these matters could have been and doubtless were considered.

We think the judgment should be affirmed, with costs.

Mayham, J., concurs; Kellogg, J., not acting.


author: Mayham, J.

text:
    Nathan Klein, Resp’t, v. The Continental Ins. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Referee—New trial fob newly discovered evidence—Referee not DISCHARGED.
    At the same time a number of actions by the same plaintiff against insurance companies were referred to a referee. One action was tried and the plaintiff succeeded. A motion for a new trial upon the ground of newly discovered evidence was made therein, which was granted. A motion was then made in that action and in all the other actions to discharge the referee. Held, that as nothing appeared showing that the referee was unfair or not competent the motion should be denied.
    3. Same—Power of court to discharge.
    Where the court orders a reference and the parties afterwards agree upon a name which the court accepts, the appointment is in fact made by the court, and it has power in a proper case to remove the referee.
    This is an appeal from an order of the special term denying a motion made by the defendant to discharge a referee.
    This action was brought upon a policy of insurance issued by the defendant to the plaintiff against loss and damage by fire. Seventeen other actions were brought against that number of insurance companies, all of which had issued policies to the plaintiff. The actions were all referred to the same referee to hear and determine, and this action was tried before such referee, and resulted in a report in favor of the plaintiff, from the judgment entered upon which an appeal was taken, pending which a motion was made at special term by the defendant for a new trial on the ground of newly discovered evidence, which was granted.
    The defendants then moved in each of said actions for the discharge of the referee heretofore appointed in these actions, which motion was denied and the defendant 'in each of said actions appeals to this court.

      A. H. Sawyer, for app’lts ; Levi Smith, for resp’t.
   Mayham, J.

As is contended by the appellants on this motion, the practice of discharging the referee when a judgment entered upon his report is reversed on appeal is almost or quite universal But the Code of Civil Procedure clothes a referee with all the powers of a judge of the court in the hearing and determination of cases referred to him and a judgment in common law actions follows upon his report with out any motion to the court in the same manner as upon the decision of a judge; and as he is usually selected by the court, or upon stipulation of the parties, with reference to his character, learning and fitness for the position, he should not be removed by the court, pending the trial of a case in which he has been appointed, accepted and qualified, without good and substantial reason.

The affidavits and papers used on this motion show that these actions were all referred by order of the court on motion of the defendants against the objection and opposition of the plaintiff, but that after the special term had determined that they were referable actions the parties agreed on the referee and he was by consent named as referee in the orders of reference.

There is nothing in the affidavits used on this motion which shows that the referee has not in all respects conducted the trial had before him with judicial fairness and impartiality or that he has been guilty of any misconduct as referee, nor does the notice of motion make partiality, unfairness, or misconduct of the referee grounds of the motion, but the principal grounds set out in the notice of motion are that the referee having tried one of these actions, involving substantially the question that will arise in the other cases, has fixed and settled opinions of the law and facts which he has expressed in his former decision and report, which he would entertain and enter upon the trial of the other seventeen ■cases, with strong bias against the defendant.

The affidavits used on this motion on both sides show that the referee made rulings on the trial adverse to the claims and contention of the respective sides, but they failed to show that they were unfair, partial or even erroneous. As the new trial in this •case has been granted on the ground of newly discovered evidence, there is nothing in this case to show that the referee, if such •evidence shall be submitted to him on another trial, will not fairly consider the same, in connection with any evidence which may be ■offered which has already been before him, and reach such a conclusion as the whole evidence will justify on any other trial. Upon the facts before us we see no reason to doubt the fairness .and impartiality of the referee, and this brings us to the consideration of the propriety and legal right to remove a referee who has heard and decided a case in which a new trial has been ordered, not on account of any error committed by the referee either in the trial or determination of the referee on a former trial, but solely ■on the ground of newly discovered evidence. The first case referred to by the learned counsel for the appellant in his points is that of Dorlon v. Lewis, 9 How., 1. That was a motion to set •aside the report of the referee for irregularity and improper •conduct on the part of the referee, in allowing himself to be interviewed, after the case was submitted to him, and he had reached a conclusion adverse to the plaintiff, privately by the attorney and witness of the plaintiff, and after such interview •changed his mind or report, and decided in favor of the plaintiff.

For such gross impartiality the report was set aside and the ■court, in discussing that case, likens the decision of the referee upon questions of fact to the verdict óf a jury, and very properly condemns any tampering with a jury or referee.

The same criticism could be passed upon a judge who would allow any improper communications between himself and a party or his attorney after a case was submitted to him and held by him for consideration. Such improper conduct would disqualify a juror or referee, and might furnish ground for the impeachment of a judge. But no such fact is established here. The next case cited by the appellant is Burrows v. Dickinson, 35 Hun, 492. In this case the special term refused to set aside the report of a referee and the general term reversed the decision of the special term and set aside the report. The case showed that during the progress of the trial before the referee he frequently importuned the defendant to aid him in procuring an appointment from the governor, and these importunities continued after the case was submitted, and there was reasonable cause to believe that the referee was prejudiced by the failure of the defendant to answer the last letter of the referee, which was written shortly before the report was made. That letter speaks of compensating the defendant for services, and was clearly such a communication as ought not to have been made between a referee and a and disclosed such relations as might well arouse suspicions in the mind of the court, or of the parties.

Judge Daniels, in commenting upon it, says: “ This was the relation which the referee voluntarily placed himself in with the defendant. It was done with the expectation of securing substantial benefits by means of his solicited exertion, and it was certainly very improper for the referee having this action before him to have placed himself in that situation.” Other communications upon the subject of the appointment of the referee to office appear, from the record, and for this reason the court set aside the-report We fail to see any analogy between the case and the one at bar. In Livermore v. Bainbridge, the report of a referee was set aside for alleged misconduct, although the court exonerated the referee from any intentional wrong, on the ground that the referee might have been influenced in his report by the fact that, he had suggested a settlement which had been disregarded by the plaintiff.

All these cases relate to the setting aside of reports of referees and not to their removals, although a cause that would justify the setting aside a report for misconduct, bias or partiality of a referee would doubtless be good reason for not appointing him in. a similar case, between the same parties, and perhaps good grounds for removal. But it is insisted on the part of the respondent that the court has no power to remove this referee; that he is not a referee appointed by the court, but agreed upon by the parties, and that the court in the absence of fraud or misconduct has no power to set aside the agreement of the parties in this respect.

The reference having been ordered by the court, the agreement of the parties' upon the person is but a nomination by the parties, acquiesced in and appointed by the court, so that the referee-was in fact appointed by the court and could in a proper case be removed by it. It is also insisted that this was not a proper case for a compulsory reference, but that question was passed upon adversely to the plaintiff’s contention on the motion for a reference,, and from that determination no appeal was taken, and must for the purposes of this motion be deemed res adjudicata.

In Maicas v. Leony, 113 N. Y., 619; 22 St. Rep., 149, the-power of the court to set aside an order of reference arbitrarily is denied.

But we do not put this decision upon the question of power. We agree with the learned special term judge that a proper case is not made for the removal of the referee in this case.

Order affirmed, with ten dollars costs.

Learned, P. J., and Kellogg, J., concur.


author: McAdam, J.

text:
    Sabina F. Kerns, Resp’t, v. John B. Hagenbuchle, App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    1. Breach of promise—Defense.
    The fact that a defendant is a married man is no defense to an action for breach of promise if plaintiff was not aware of his marriage.

      .2. Same—Damages.
    In actions for breach of promise vindictive damages are allowed.
    Appeal from, a judgment in favor of the plaintiff on verdict of .a jury and from an order denying a motion for a new trial.

      N. T M. Mellis, for app’lt; G. J. Duvall, Jr., and John B. Beed, for resp’t.
   McAdam, J.

The action was brought by the plaintiff to recover damages for a breach of promise to marry. The answer denies the promise alleged and sets up in defense that the defendant is now, and was at the .time when the alleged promise was made, a married man.

The purpose of this defense was to make void any promise of marriage to the plaintiff, in case there was evidence that a promise had been made.

The jury found a verdict in favor of the plaintiff and assessed her damages at $5,000, and from this judgment the present appeal was taken.

The evidence sufficiently sustains the verdict, and the fact that the defendant was a married man is no defense. In actions of this kind, if a plaintiff knows that the defendant is married the promise is void, because both parties know that the defendant is incapable of carrying out the contract. Haviland v. Halstead, 34 N. Y., 643; Cammerer v. Muller, 38 St. Rep., 583.

But where it appears, as it did in this case, that the plaintiff was not aware of the defendant’s marriage, the rule has no application.

Where the defendant is under a disability known to him, but unknown to the plaintiff, the right of the plaintiff to maintain an notion is clear.

Thus, in Harrison v. Cage, 1 Ld. Raym., 387, it was held that n pre-engagement by the defendant is no defense. Holt, C. J., •said: “ Precontract is a disability, but it will not avoid the performance of your promise, because it proceeds from your own •act.” Nor is the fact that the defendant was married at the time of the promise necessarily a defense. Wild v. Harris, 7 C. B., 999; Millward v. Littlewood, 1 E., L. & E., 408; S. C., 5 Exch., 775. The consideration was said to be that the plaintiff would remain unmarried. Pollock, C. B., said that the defendant impliedly promised that there was no impediment to his performing his promise." This doctrine was also applied in Blattmacher v. Saal, 29 Barb., 22, which correctly states the law upon the subject. This case is referred to in an article published in the 11th American Law Reg., N. S., 65, 71. The rule laid down in Haviland v. Halstead, 34 N. Y., 643, has no application, for in that case the plaintiff knew at the time that the defendant had a wife living of •a former marriage ; that he had been divorced from such former-wife for misconduct on his part, and she “knew the cause of such ■divorce,” see opinion of the court at p. 644, and was consequently chargeable with a knowledge of the law applicable. The fact here is the reverse, for the plaintiff had no knowledge of the defendant’s incapacity to contract.

As the defendant was unable to make his promise good, the. plaintiff’s right of action accrued the moment she discovered the-inability. She was not bound to tender performance on her part or to request performance on his. In Shart v. Stone, 8 Q. B., 358, it appeared that subsequent to the promise to marry the-plaintiff, the defendant had married another; it was held that this, dispensed with any request on the part of the plaintiff. See, also, Caines v. Smith, 15 M. & W., 189; Lovelock v. Franklyn, 8 Q. B., 378; Crist v. Armour, 34 Barb., 378, 387. The plaintiff, engaged herself to the defendant on his implied agreement that, he was legally capable of contracting marriage, in consideration of which she has remained unmarried, and has not sought other-suitors. She has been intentionally wronged, but whether intentionally or not, the injury to her is the same.

The next question is, whether the damages were excessive.

Sutherland in his work on Damages, vol. 3, p. 323, says :. “ It is proper for the jury to consider the pecuniary as well as-the social standing of the defendant as tending to show the condition in life which the plaintiff would have secured by the marriage. In these cases the jury should take into consideration the rank and position of the parties, the estate of the defendant, and all the facts proven in the case. And the amount of damages, not being capable of measurement by any precise rule, is left for decision to the discretion of the jury on the circumstances of each particular case, subject to the power of the court to set aside the-verdict when it appears that the jury has been misled or influenced by passion or prejudice.”

In actions for breach of promise vindictive damages are allowed, for this action, though founded on contract, is regarded as being somewhat in the nature of a tort. Johnson v. Jenkins, 24 N. Y., 252; Thorn v. Knapp, 42 id., 474.

In Campbell v. Arbuckle, 21 St. Rep., 412; S. C., 4 N. Y. Supp., 29; affirmed 123 N. Y., 662; 34 St. Rep., 1009, it was. held not reversible error to charge the jury that if they found for the plaintiff, she was entitled to recover such damages as the jury-might award ; that they were permitted to exercise their discretion in regard to the amount of damages, provided only that their • conduct was not marked by prejudice, passion or corruption.

There is nothing in the case to warrant the belief that the jury were misled or influenced by passion or prejudice, and nothing" to indicate that the verdict is excessive. The exceptions taken are without merit.

It follows, therefore, that the judgment and order appealed from must be affirmed, with costs.

Freedman, P. J., and G-ildersleeve, J., concur.


author: Gildersleeve, J.

text:
    John Cunningham, App’lt, v. The East River Electric Light Co., Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    False imprisonment—Pleading.
    A complaint in an action for false imprisonment, which does not show" that the process under which the plaintiff was arrested was irregular and unlawful, does not state facts sufficient to constitute a cause of action,, even though malice in procuring the arrest is averred.
    Appeal from a judgment dismissing the complaint

      William J. Lacey, for app’lt; William H. Kelly, for resp’t.
   Gildersleeve, J.

This is an appeal from a judgment rendered at trial term dismissing the complaint in this action on the ground that said complaint does not state facts sufficient to constitute a cause of action.

The complaint sets forth the cause of action as follows: “ That on the 8th day of January, 1890, at the city of New York, said defendant, maliciously intending to injure the plaintiff, procured the plaintiff to be arrested and placed in the custody of a police officer, who compelled the plaintiff to go with him, against the will of said plaintiff, in such custody, through the streets of said city to the 18th precinct police station, and, after being confined there, said plaintiff was taken in such custody to the police court, and was then and there committed to the Tombs prison, and after being imprisoned and confined in such custody until the 10th day of January, 1890, said plaintiff was conveyed to the court of special sessions in said city, where the defendant being-unable to establish any offense against the plaintiff, said plaintiff was discharged and acquitted.”

At the commencement of the trial the plaintiff’s counsel announced that the action was one for false imprisonment, only, and not one for malicious prosecution; whereupon the trial judge granted defendant’s motion to dismiss the complaint Plaintiff then asked leave to amend, which was denied; plaintiff then asked leave to withdraw a juror and amend, which request was also denied. To neither of these rulings was any exception taken, so that they present no question for consideration here. After this, defendant asked for an allowance, which was granted; and then plaintiff took an exception to the dismissal of the complaint

The plaintiff was at liberty to combine both an action for false imprisonment and one for malicious prosecution in the same complaint, see Marks v. Townsend, 97 N. Y., 590; also Castro v. Uriarte, 2 Civ. Pro., 210; but as he particularly stated that his action was for false imprisonment, solely, we must consider the case from that standpoint alone. See Von Latham v. Libby, 38 Barb., 342.

It is well settled that the material allegations in a complaint in an action for false imprisonment, as distinguished from one for malicious prosecution, are that defendant had plaintiff imprisoned, and.that the process was unlawful, i. e., without authority of law. See Ackroyd v. Ackroyd, 3 Daly, 38; also, Castro v. Uriarte, 2 Civ. Pro., 214; Marks v. Townsend, 97 N. Y., 596.

The action cannot be maintained where the process was regular, and the arrest under it lawful. See Nebenzahl v. Townsend, 61 How. Pr., 353; Landt v. Hilts, 19 Barb., 283; Sleight v. Ogle, 4 E. D. Smith, 445; Marks v. Townsend, 97 N. Y., 596; Reynolds v. Corp, 3 Caines, 267; Brown v. Crowl, 5 Wend., 298.

There is no claim made in the complaint that the arrest was unlawful, or the process irregular-.

As far as the complaint shows, the imprisonment was lawfully effected. The allegation of malice does not help the plaintiff; for even if the defendant were moved by malice in causing the arrest, unless the process was irregular and unlawful, an action for false imprisonment, as distinguished from one for malicious prosecution, would not lie. See Sleight v. Ogle, 4 E. D. Smith, 445; also Von Latham v. Libby, 38 Barb., 339; Brown v. Chadsey, 39 id., 253; Ackroyd v. Ackroyd, 3 Daly, 38; Castro v. Uriarte, 2 Civ. Pro., 214.

We are of the opinion that the learned trial judge did not err in his ruling that the complaint does not state facts sufficient to constitute a cause of action for false imprisonment.

The judgment appealed from is affirmed, with costs.

Me Adam, J., concurs.


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    Frazier M. Dolbeer, Resp’t, v. John Stout, App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Attachment—Affidavit by assignee of claim.
    Where the action is brought by the assignee of a claim, an allegation in the affidavit for an attachment that the sum claimed is due “ over and above all counterclaims known to him,” is sufficient; as it will. be presumed that before taking the assignment he made himself familiar with all matters connected with the claim. It is not necessary that he add “or his assignors.”
    Appeal from an order denying motion to vacate an attachment.

      Thos. J. Farrell, for app’lt; Edw. S. Clinch, for resp’t
   Gildersleeve, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The plaintiff, by whom the attachment was obtained against the defendant, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him, and in it he swears that the sum claimed is due “ over and above all counterclaims known to him.” The defendant claims that the affidavit was insufficient, for the reason that as the plaintiff is only the assignee of the cause of action, he should have added the words “ or to his assignors,” and that he should have shown from what sources he derived his knowledge that there were no counterclaims.

The language used by the plaintiff is the exact phraseology required by § 636 of the Code in that regard. He makes the statement absolutely, without giving the sources from which he obtained his knowledge. The learned counsel for the appellant urges that it might well be that the plaintiff, the assignee of the cause of action, might not know of any counterclaims, being only partially familiar with the business transactions out of which the claims grew; while, at the same time, there might, in point of fact, be a counterclaim known to the assignors of plaintiff. It may be suggested, in answer to this, that it is just as reasonable to suppose that the plaintiff, on being made assignee of the cause of action, would naturally inquire, as an intelligent and prudent man would, into the transactions involved; and if there were any counterclaims that he would ascertain them.

The case of Crowns v. Vail, 51 Hun, 204; 21 St. Rep., 208, which controlled the decision of the court below, is exactly in point. Likewise, in the case of Mallary v. Allen, 15 Abb. N. C., 338, the general term of the city court of New York held that the expression “ known to him,” in § 636 of the Code, referring to the allegation in regard to counterclaims in the affidavit, is amere limiting clause, and proof of the plaintiff’s knowledge that there is no counterclaim is not essential to confer jurisdiction to issue the warrant. In that case, as in the case at bar, the plaintiff was the assignee of the cause of action.

In the case of Doctor v. Schnepp, 7 Civ. Pro., 144, the city court, general term, held, where one of several plaintiffs made the affidavit for attachment, that the law will not infer the matters positively sworn to are not within the personal knowledge of the affiant unless it is apparent that such knowledge is a matter of impossibility.

The case of Ruppert v. Haug, 87 N. Y., 141, cited by the counsel for the appellants, is not analogous to the case at bar, for the reason that in that case the affidavit merely stated that the plaintiff was entitled to recover the sum of money specified, without any reference to a counterclaim whatever, which is manifestly not in accordance with the requirements of § 636 of the Code.

Neither does the case of McVicar v. Campanini, 19 St. Rep., 56, cited by the appellant, apply, for the reason that in that case the affidavit was made by the agent of the plaintiff without stating his sources of knowledge.

Nor is the case of Lee v. Co-operative Life Association, 19 St. Rep., 879, in point, as in that case the affidavit was made by the brother-in-law of the plaintiff, who fails to show any knowledge of the matter.

Neither does the case of Cribben v. Schillinger, 30 Hun, 248, apply, as in that case the affidavit was made by one of the attorneys for the plaintiff, in which he merely stated that his knowledge of the matter was derived from a letter sent to him by plaintiff containing a statement of the account upon which the action was founded; which is clearly insufficient, as he does not even claim that he was informed by the plaintiff of the non-existence of a counterclaim.

Nor is the case of Belden v. Wilcox, 47 Hun, 331; 14 St. Rep., 374, at all decisive of this appeal, as the affidavit there was made by a third person on information and belief, without stating any reason why the plaintiff did not make the affidavit, and setting forth that his information was derived from a complaint and affidavits filed in the office of the county clerk more than five weeks prior to the time of the making of the affidavit in the attachment proceeding, with nothing to show that within those five weeks a different state of facts had not arisen. This plainly is not a similar case to the case at bar.

The rule is not the same where the affidavit is made by an agent or attorney of a plaintiff, as it is where the affidavit is made by the assignee of a claim, who is himself the plaintiff. In case the affidavit on attachment is made by an agent or attorney, the law very properly exacts that lie should show some knowledge of the subject, and not rest upon the bare statement of the language of § 636 of the Code, that the amount specified is due and owing “over and above all counterclaims known to him ” or to plaintiff. But where the affidavit is made by the assignee of the claim, the mere statement required by § 636 of the Code is sufficient. See Crowns v. Vail, 51 Hun, 204; 21 St. Rep., 208.

This is logical and just, for the reason that the law will presume that the owner of the claim, having made himself liable for costs, and having given a bond, has knowledge of what he states, and is in all respects on the same footing as his assignor would have been had he not assigned the claim, but become plaintiff in the action. A discreet man, proposing to become the assignee of a claim, will make himself familiar with the matters involved in the assignment, before consenting to receive the claim and bring the action. The law presumes every man to act with fair intelligence and reasonable discretion, unless the contrary appears.

If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, whether the plaintiff be the assignee of the claim or the original owner, see Uroums v. Vail, supra, unless it affirmatively appears that he could not have had any personal knowledge of the matter.

This view is supported by Ruppert v. Haug, supra, where it was held: “ It is enough if the affidavit shows this to the satisfaction of the judge who receives the application for the warrant, but there must be some evidence. Steuben Co. Bk. v. Alberger, 78 N. Y., 252. The words of the statute need not be followed, although they furnish the safest formula.”

In that case, there was no evidence of the non-existence of a counterclaim, inasmuch as the affidavit was silent in that regard ; whereas, in the case at bar the affidavit supplies the necessary evidence.

For the reasons above indicated, the order appealed from is affirmed, with ten dollars costs and disbursements.

Freedsiah, J., concurs.


text:
    Charles Ulrich, App’lt, v. Edward Ulrich, Ex’r., Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    1. Services—Relatives.
    In the case of services rendered or board and lodging furnished to near relatives the law presumes that they were rendered or furnished gratuitously, and in order to overcome this presumption there must be an express promise to pay proved, or satisfactory evidence showing that the parties expected to pay and be paid.
    2. Same.
    Plaintiff and his wife, who lived with his mother, rendered services in taking care of and nursing her, but made no claim for compensation during her lifetime. On her death plaintiff received the same share of her property as her other children Held, that in the absence of satisfactory proof of an agreement to pay for such services that plaintiff could not recover therefor.

      The action was against the defendant, as the executor of Barbara Ulrich, to recover for the work, labor and services of the plaintiff and his wife, in taking care of and nursing his mother, Barbara Ulrich, in her old age, from March, 1885, down to the time of her death, which occurred October 1, 1889. The answer denied the employment or the rendition of services.
    The court charged the jury that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict; otherwise not
    The jury found for the defendant and from the judgment entered on their verdict, and the order denying a motion for a new trial, the plaintiff appeals.
    • Nelson Smith, for app’lt; E. P. Orrell and E. W. S. Johnston, for resp’t.
   McAdam, J.

The plaintiff lived with *and was supported by his mother during the time for which compensation is claimed, and the rule is settled that where it is sought to establish the relation of master and servant between relatives living together it must be proved that the parties understood the latter relation to exist and acted with reference to it, and the mere fact that the services rendered were meritorious and long continued does not of itself tend to establish the relation. In order to create the relation of master and servant in such a case, there must be unequivocal acts proving an agreement.

“The duties of children to their parents,” says Blackstone, “ arise from a principle of natural justice and retribution. For to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need, of assistance.” 1 Bl. Com., 453. This expresses the moral rather than the legal obligation of the child, for at common law children were not hound to support their parents, yet the sentiment expressed by Blackstone is so just that statutes have been passed under which children may be compelled to support indigent parents, Code Grim. Pro., § 914, and thus by force of positive enactments the principle stated by that learned jurist is practically the law of the land to-day. Where there is near relationship between the alleged promisor and promisee, transactions between them do not give rise t o the ordinary presumptions that arise from business dealings. Collyer v. Collyer, 113 N. Y., 448; 22 St. Rep., 723.

Indeed, in cases of this character, the law does not imply a promise to pay for services rendered or for board and lodging furnished, but will presume that they were rendered and furnished gratuitously, and in order to overcome this presumption there must be an express promise to pay proved, or satisfactory evidence showing that the parties expected to pay and be paid. Lynn v. Smith, 35 Hun, 275; Roblee v. Gallentine, 19 Week. Dig., 153; Carpenter v. Weller, 15 Hun, 134; Updike v. Titus, 13 N. J. Eq., 152; Hall v. Finch, 29 Wisc., 278; Andrus v. Foster, 17 Vt., 560; Fitch v. Peckham, 16 id., 150; Ayres v. Hull, 5 Kan., 419; Greenwell v. Greenwell, 28 id., 675; Ulrich v. Arnold, 120 Pa. St., 170; Houck's Executors v. Houck, 99 id., 552; Lynn v. Lynn, 29 id., 369; Hertzog v. Hertzog, id., 468.

The agreement should be clearly expressed or satisfactorily established by reliable evidence. Spraker v. Dow, 16 St. Rep., 297; Gaylord v. Gaylord, 7 id., 703; Shakespeare v. Markham, 10 Hun, 311; aff’d, 72 N. Y., 400; Keller v Stuck, 4 Redf., 294. In Ulrich v. Arnold, 120 Pa. St., 170, the court went as far as to say:

“ Mere loose and rambling declarations of an aged and infirm parent expressing gratitude for the services of a child during a period of illness and of suffering, services which all right-minded, children willingly render to their suffering parents without hope of reward or expressing a presumption that payment will be made for them, or the hope that compensation should be rendered after death, are not a contract nor the evidence of one between persons ' thus related. It is, at best, but an ill-judged and misplaced impression which prompts juries to dignify such declarations and expressions with the qualities of a positive and express contract. It is in derogation of our common humanity and of the best interests of our race, and ought not to be encouraged by a tribunal which administers justice. If in any given case a child expects to be paid for filial services to an infirm parent, let him or her conform to the law and enter into a specific and definite contract with the parent during the parent’s life, fixing the character of the services, and determine positively the fact that compensation is to be made for it. When this is done the courts will see that the contract is enforced; when it is not done, claims for such services when presented as legal obligations do not deserve the slightest consideration.”

The plaintiff received the same bounty under his mother’s will that the other children obtained. He made no claim for compensation during her lifetime. Claims thus withheld during the lifetime of an alleged debtor, and sought to be enforced after death, áre to be carefully scrutinized and only admitted upon satisfactory proof, Kearney v. McKeon, 85 N. Y., 137; Havens v. Havens, 21 St.Rep., 958; Ross v. Ross, 6 Hun, 184; Moore v. Moore, 3 Abb. Ct. App. Dec., 303, as they have every intendment and presumption against them. Koecker’s Executors, 47 L. I., Pa., 505. In view of these authorities it cannot be seriously claimed that the case was not fairly submitted to the jury, nor that the learned trial judge committed the slightest error in his charge. The facts were seemingly against the plaintiff’s contention, and the issues had to go to the jury for their determination. At the conclusion of the evidence it was a question about which minds might differ as to whether the plaintiff had overcome the presumptions against his right of recovery, and whether his proofs were satisfactory.

The plaintiff is undoubtedly correct in claiming that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury, Kavanagh v. Wilson, 70 N. Y., 177, but the witnesses in this instance testified only to conversations overheard and admissions made, a dangerous species of evidence at best, for such declarations are apt to be misunderstood and misinterpreted, particularly when made by an aged and infirm woman, who has already made provision in her will for the benefit of the person in whose favor the alleged admissions were made.

Inferences were to be drawn from the relations of the parties and the surrounding circumstances. The conversations were to be construed with reference to them, that the intent of the parties might be arrived at, and it may well be that the mother in speaking of compensation may have had in mind the provisions of her will, in and by which the- plaintiff received his full share of all her worldly goods. There was such a strong degree of improbability against the propriety of the claim made that the question to be determined was one pre-eminently for the jury, a subject easier to settle in a particular instance than by generalization, nor is it surprising, in view of the circumstances, that the jury found in favor of the defendant. No error was committed and no injustice done. It follows that the judgment and order appealed from must be affirmed, with costs.

GrlLDERSLEEVE, J., concurs.


text:
    William Palm, App’lt, v. The New York, New Haven & Hartford Railroad Co., Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Railroads—Extortion—Limitation as to fare.
    By the act authorizing the extension of defendant’s road within this state, it was limited to three cents a mile for fare, and its lessor, the H. R. & B. O. R. R. Co., was similarly limited, Defendant built a spur track of half a mile over lands of its lessor to a race track, for the purpose of carrying passengers during the racing season, and charged fifty cents fare for the round trip of five or six miles each way. Held, that there was no violation of the statute; that such spur was not a railroad constructed under the general railroad act, and the fare thereon was not limited by the statute, and that it would be presumed that the excess of fare over three cents a mile was for transportation over that strip or branch road.
    The action was to recover fifty dollars as a penalty, and fourteen cents as excess of fare, under “An act to prevent extortion by railroad companies,” passed March 27, 1857; chapter 185, as amended by chapter 415 of the Laws of 1886. The trial was had before the court, without a jury. Judgment was rendered in favor of the defendant, and the plaintiff appeals. For report on former appeal, see 35 St. Rep., 457.

      R. J. Shadbolt and E. M. Wight, for app’lt; Rage & Taft and John E. Parsons, for resp’t.
   McAdam, J.

The New York, New Haven & Hartford Railroad Company was incorporated under the laws of Connecticut The road was extended into this state by permission given by an act of the legislature. Laws of 1846, chap. 195. By § 4 of that act, it was provided that the charge for the transportation of passengers should not exceed three cents per mile within this state.

By an act passed in 1866, as amended in 1869, the Harlem River & Port Chester Railroad Company was incorporated for the construction of a railroad from the Harlem river to New Rochelle, in the state of New York. That road was built, and runs along on the east side of the New York, New Haven & Hartford Road, and several years ago was leased to the N. Y., N. H. & H. R. R. Co., and has been and operated by that company ever since.

Between the Harlem river and New Rochelle is a station called Van Nest, and about half a mile off from that station is the Morris Park race-course, and, when the races were had, large numbers of people went there, more than could be carried on the regular trains, and getting off at the station they were compelled to walk about half a mile to the race track. • The Harlem River & Port Chester Railroad Company owned the land on which'the race track was laid, and also the land between that and the railroad, although it was not used for railroad purposes. In 1889, for the purpose of taking passengers from the station to the race-course, the defendant built a spur or branch road from the station at Van Nest to the race grounds, and has ever since, on the days of the races, run special trains from the Harlem river to the race track on this spur or branch after leaving the railroad at Van Nest, taking the passengers right on the grounds, issuing and selling tickets stamped “R. C. & H. R,” meaning “Race Course and Harlem River,” and charging fifty cents for the round trip or excursion, the distance being between five and six miles each way.

By the general railroad act, chap. 140 of the Laws of 1850, under which the Harlem River & Port Chester Railroad Company was organized, the compensation to be charged or received by corporations formed thereunder for transporting passengers is limited to three cents a mile, and by chapter 185 of the Laws of 1857, as amended in 1886, it was enacted that if any railroad company shall ask or receive a greater rate of fare than is allowed by law it shall forfeit fifty dollars in addition to the excess of fare paid, to be recovered by the party paying the same.

On the 20th of August, 1889, the plaintiff bought such a ticket and paid fifty cents for it, and with it, or under it, as stated in the case, he rode from the Harlem river station in New York to and from the race course on a special train, and then brought this suit to recover fourteen cents, the excess over three cents per mile, and a fifty dollar penalty; and the question now is whether the railroad company has incurred the penalty by charging or receiving fifty cents for that excursion ticket. The spur or track built from the race grounds to Van Nest station is not a part of the line or route of the Harlem River & Port Chester Railroad, but is. a track built only for use on the days of the races, to take people from the station to and from the race course by cars running to take people going to and from the race grounds only. Passengers going from the Harlem river station to the Yan Rest station were charged but three cents a mile, but people who wished to go to a place off from the line of the road were charged a little more. 'The company might have run a line of stages from the station to Ttlie race course, in which case it will not be pretended that it would be limited in its charges to three cents a mile, or that the :act of the legislature, fixing the rate of fare on railroads con■structed under that act, would govern. Does the fact that the railroad company made a railroad track over that piece of ground so that cars could be switched off on it from the line of the railroad, and the passengers so carried to the race ground, make it any different? If a separate short railroad had been built from Yan Rest station to the race course, not connected by a switch with the track of the railroad, and the passengers had been carried .across by a shuttle train, it would not then have been a part of the Harlem River & Port Chester Railroad, nor a road formed under the provisions of the general railroad act, nor would § 28 ■of that act have any application; and in our opinion it has no more application as it is.

The title and right of way must be acquired and a survey and map of the route and line of a railroad incorporated under the general railroad act must 'always be made and filed. If these preliminaries are not complied with, or these proceedings are not had, it is not a railroad constructed under that act, and if it is not a railroad constructed under that act sub. 9 of § 28 of that act does not fix the rate of fare; for that section by its express terms fixes the rate of fare only on railroads constructed under that act If then, as appears to be the case, this .spur or branch road from Yan Rest station to the race course was not constructed under the general railroad act, and is not a part ■of the Harlem River & Port Chester Railroad, but an independent ■or temporary structure, which may be used or not at the option of its builders, and may be abandoned at any time, there is no law limiting the price the defendant may charge or receive for carrying passengers upon it. At least there is no law making it penal, ■or giving to the plaintiff the penalty sued for in this case. It may be an unlawful structure or an unauthorized railroad, but that fact would not give the plaintiff a right of action. It might give the state, through the attorney-general, the right to compel a discontinuance of the use of the spur or branch, as unlawful, but as no such course has been taken, the discussion of that question becomes unnecessary. The state certainly could not compel the defendant to run its trains to Morris Park race course, for the simple reason that it was not a station on its road, nor indicated on any map or ■survey thereof, nor could the state for non user of the spur or branch have forfeited the charter of the road or deprived it of any of its corporate franchises. This is one effect of the spur or branch not being within any of the provisions of the acts authorizing railways, and another is the inability of a passenger voluntarily Availing himself of the special accommodation of the spur or branch recovering any penalty under such acts for compensation •exacted for the extra privileges afforded.

The private spur or branch was used at the will of the defendant, as a private enterprise and only on occasions when it thought proper, and it is not subject to any of the acts regulating authorized railways that are available to the plaintiff.

Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation.

The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case.

The transportation of passengers over a half mile on private track off the line of the defendant’s railroad is, therefore, as foreign to the ordinary transportation business of the company as the furnishing of meals or seats in a grand stand, or the carrying in elevators or carriages. The land on which the six tracks were built might have been converted into a private road in which to-carry passengers from Yan Hest station to the race course. The defendant preferred the more convenient arrangement of building a spur track. To do this, it is claimed, needed no statutory authority.

The defendant owned the land as a private individual might own it, and it is urged that it requires no special statutory authority for a private individual to build upon his own land railroad tracks, and run cars thereon for the convenience of his guests or patrons. That there is nothing contrary to public policy in his doing so. We do not feel called upon to decide this proposition in the present case, but if it be argued, such a railroad needs no-franchise or power from the state, the owner may operate it to suit himself and he will not be subject to the regulations and restrictions contained in the general railroad act. The defendant could have leased or sold this land to the owner of Morris Park, and he probably might have run the cars on the tracks without, organizing a railroad company or being forced to ask for and receive any power or aid from the state. He certainly would not have been subject to the provisions of the general railroad act, and it is urged with force that the defendant is not in a worse position.

It is entirely clear that this outside track was never intended to-be a railroad under the statute conferring corporate rights, or imposing corporate obligations or liabilities,but was intended to be, and is, a temporary structure to be occasionally used for the convenience of persons desiring to go to a place off from the railroad,, and to be discontinued or abandoned at any time at the pleasure-of the builders.

If that branch or strip of road is not a part of the Harlem &. Port Chester railroad, or was not constructed under or in pursuance of the general railroad act, and the charge in excess of three cents a mile was for transportation over that strip or branch road, the plaintiff is not entitled to recover that excess nor the penalty. Penal statutes must be strictly construed, and to recover a penalty a plaintiff must always make a plain case, and bring his claim within the very letter of the statute. Hall v. Sigel, 13 Abb., N. S., 178; aff’d 53 N. Y., 607; Seward v. Beach, 29 Barb., 239; Millered v. Railroad Co., 9 How., 238; Verona C. C. Co. v. Murtaugh, 50 N. Y., 314; Wood v. Erie Railway Co., 72 id., 198; Bonnell v. Griswold, 80 id., 128; Potter’s Dwarris’ Statutes, 243.

The court in this case has found that the sum over three cents per mile was for or because of transportation over that outside track, and the evidence warrants that conclusion. All the company charges for any distance on the line of the railroad is three cents per mile or less, and passengers on the road stopping at Van Nest station are required to pay but three cents per mile ; but when, as in this case, a passenger asks to be carried from the station to a place off from the line of the road, and where the company is not obliged to take him, there does not appear to be any law forbidding the company charging an extra compensation.

The court has found that the facts do not show any violation' of the provision of § 4 of chap. 195 of the Laws of 1846. That is ■true, for the reason, among others, that that law has no application to this case. It is not for carrying the plaintiff over that road, or any railroad incorporated under that act, that the plaintiff paid the fare in question in this case. The road in question is the Harlem Eiver & Port Chester railroad, incorporated under another and .a different act, and which the defendant is running as lessee.

The court also finds that the proof does not show any violation of subdivision 9 of § 28 of the General Eailroad Act, chap. 140 ■of the Laws of 1850, and this presents the whole question.

If the views before expressed are correct, that the branch road from Van Nest Station to the race track is not a railroad constructed under the general railroad act, then this finding is correct, and the plaintiff to recover was bound to show that it was, or •at least that it was constructed under some act of the legislature limiting the rate of fare to be charged to passengers carried over it to less than the sum charged in this case, which he has failed to do.

All presumptions must be in support of a judgment, and if the statutes and the evidence in this case will bear a construction that will sustain the judgment, that construction must be given them. If the defendant was not limited by the statute in its ■charges for transporting persons over that branch track, then it must be presumed that the excess over three cents per mile (the fourteen cents) was charged and received for that extra service. Besides, as the case does not show that it contains all the evidence, if there is any lacking, or not printed in the case, necessary to support the findings, although there does not appear to be, the court must presume it was given. Porter v. Smith, 107 N. Y., 531; 12 St. Rep., 479; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948.

Where there is an exception to a finding of fact on the ground that there is no evidence whatever to sustain the finding, it is not ■necessary, in order to raise that legal question, that the case contains all the evidence, Halpin v. Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788. But that is not this case. The plaintiff in this ■case, if he claimed or wanted a finding that the spur or track from Van Nest station to the race course was a part of the Harlem Eiver & Port Chester Railroad, should have requested such a finding. Patterson v. Robinson, 116 N. Y., 198, 199; 26 St. Rep.. 685. He did not do so, nor did he, as it looks to us, request any findings. He drew up a draft of a decision which, however, the judge treated as requests to find, but did not adopt

The court has not found, nor has it been proved, that there is-any such station as Mount Morris Park on the line of the Harlem River & Port Chester Railroad, nor that the distance that the plaintiff was carried on that railroad was less than six miles, nor that the entire charge of fifty cents was for travel on that railroad; but does find that the charge was for transportation from One Hundred and Thirty-fourth street to Morris Park and return.

All the findings of fact that the judge did make are supported by evidence, and the second legal question, on which the whole case rests, is supported by the evidence on the part of the defendant before alluded to, and by the failure of the plaintiff to prove what the burden was on him to show to entitle himself to recover a penalty.

It follows that the j udgment appealed from must be affirmed,, with costs.

Freedman and Gildersleeve, JJ., concur.


author: Freedman, J.

text:
    Laura Vassar, App’lt, v. The Knickerbocker Ice Co., Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Master and servant—Negligence—Declarations op servant.
    Although the declarations of a servant while engaged in the performance of an act in the master’s service may hind the master, especially when the intention with which the servant acted is a proper subject of inquiry, this rule applies only to such declarations as are part of the res gesta,. No declaration made after the act has been fully completed is part of the resgesta or admissible as original evidence against the master.
    Appeal by plaintiff from a judgment entered in favor of defendant upon the verdict of a jury, and from an order denying-plaintiff’s motion for a new trial.

      Joseph Fettretch, for app’lt; Albert Stickney, for resp’t.
   Freedman, J.

This action was brought for the recovery of damages for personal injuries, alleged to have been sustained by the plaintiff in consequence of defendant’s negligence. The defendant, in substance, interposed a general denial. Upon the trial the questions relating to plaintiff’s contributory negligence and to the alleged negligence of the defendant were submitted to the jury, and the jury found for the defendant. The verdict is-not contrary to evidence, nor against the weight of the evidence, and it should not be disturbed unless a material error was committed in the course of the trial. There was no error in the admission of evidence.

The only complaint made as to the exclusion of evidence relates to the exclusion of a question put by plaintiff’s counsel to a witness called on behalf of the plaintiff, as to what the driver of defendant’s ice truck said to the witness in regard to the wheel running over the plaintiff. The point of time to which the question related was after the accident had happened. The driver’s act was then entirely finished. Any statement then made by him must necessarily have been only an admission of a fact as to an occurrence then past, and as such it was inadmissible against the defendant True, the declaration of a servant, while engaged in the performance of an act in the master’s service, may bind the master, especially when the "intention with which the servant has acted is a proper subject of inquiry, but this rule applies only to such declarations as are part of the res gestee, lío declaration is part of the res gestae if made after the act has been fully completed. It then matters not whether only a minute, or an hour, or a day, has elapsed. Darling v. Oswego Falls Manuf'g Co., 30 Hun, 276; Luby v. Hudson River R. R. Co., 17 N. Y., 131; Utter v. Forty-Second Street, etc., R. R. Co., 6 Daly, 227; Packet Co. v. Clough, 20 Wall., 528; Vicksburgh, etc., R. R. Co. v. O'Brien, 22 Reporter, 771.

The question might have been admissible, if the inquiry had. first been made of the driver on cross-examination with the view of bringing out some admission made by him inconsistent with the testimony which he gave on behalf of the defendant. But no-such question had been put to the driver. The testimony was offered in the first instance as original evidence against the defendant, and as such it was inadmissible. This being so, the court properly refused to allow plaintiff’s counsel to follow up the exception taken to the exclusion of the question by a general offer of what the counsel proposed to show.

All the issues were fully and fairly submitted to the jury. The charge as delivered, the refusals to charge otherwise, and the responses made by the trial judge to some of the requests to charge, must all be taken together, and when they are thus considered as a whole, no error appears which calls for reversal.

The judgment and order should be affirmed, with costs.

McAdam and Gtldersleeye, JJ., concur.


text:
    George T. Crombie et al., Resp’ts, v. Gertrude R. Waldo, App’lt.

      (New York Superior Court,

      General Term,

      filed January 11, 1892.)

    Brokers—Compensation.
    Plaintiffs were authorized by defendant to offer on her behalf to the trustees of common schools to lease to them certain lots upon some arrangement under which she was to put up a building thereon. Subsequently plaintiffs procured the execution of an agreement by which defendant agreed to erect such a building as should be approved by the superintendent of school buildings, and on its completion execute a lease thereof to the trustees, and the trustees agreed on the completion and approval of the building to execute such lease. Held, that plaintiffs had then done all that they could do as brokers and were entitled to their compensation in the absence of an agreement that they should not be paid unless the contract was fully performed; that it was no part of their duty to see that defendant put up the building.

      Appeal from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion .for a new trial.

      Joseph N. Tuttle, for app’lt; J. 0. Julius Langbein, for resp’ts.
   Freedman, J.

This action was brought by the plaintiffs as real estate brokers to recover compensation for services alleged to have been performed for defendant, in pursuance of a certain employment. All questions relating to the fact of the employment, the nature and terms of the employment, the performance of the •contract of employment, and the rate of compensation, were submitted to the jury. The verdict was for the plaintiffs, and it should not be disturbed unless there was some error in the course •of the trial which calls for reversal. There are numerous exceptions to the admission of evidence, the refusal to dismiss, the refusal to direct a verdict for the defendant, to the charge and the refusals to charge otherwise, but, on examination, they all appear, .in so far as they involve any substantial point whatever, to relate to the same question, namely, the sufficiency of the evidence upon the question of performance to carry the case to the jury. If the ■evidence was insufficient for that purpose, the complaint should have been dismissed or a verdict directed for the defendant.

The complaint alleged an employment to procure a party or parties to lease the four lots of land of the defendant.

The answer admitted that plaintiffs applied to defendant for authority to offer, on her behalf, to the trustees of common schools for the twelfth ward of the city of Hew York, to lease to them the said lots upon some arrangement under which the defendant was to put up a building thereon, and that the defendant consented thereto.

Upon the trial the defendant admitted that plaintiffs were employed by her to procure a lease and that they did procure the execution of the paper marked “ Plaintiff’s exhibit Ho. 4, of May 7th, 1891,” and upon this appeal the counsel for the defendant, in his brief, expressly waives the point that the defendant was induced by false representations to sign the said paper, and, also, the further point that the plaintiffs impeded and delayed the defendant from beginning work on said building.

The paper referred to is an agreement executed under seal between the defendant, as party of the first part, and the trustees of common schools for the twelfth ward of the city of Hew York, parties of the second part. It provides, first, for the erection by the party of the first part, on the lots in question, of a building in accordance with certain plans to be approved by the superintendent of school buildings, and then concludes as follows, viz.:

“ And the said party of the first part, for the consideration aforesaid, hereby further agrees that when the said building shall be so completed and approved of by the superintendent of school buildings, she will then make and execute a lease to the said parties of the second part of the said building and lots of land, for the term of ten years from the time of such completion and approval, and at annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause.
“ And the said parties of the second part,- for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said building is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease.
“In witness whereof, etc., etc.”

It thus appears that the plaintiffs, by their efforts, brought the parties together; that they procured a lessee ready and willing to take the premises as they had undertaken to do; and that the meeting of the parties resulted in the execution of a contract under seal for the leasing of the premises.

That was all the plaintiffs could do as brokers. It was no part of their duty as brokers to see that the defendant put up the building or complied with the terms of the contract on her part, and hence the subsequent inability of the defendant to put up the building and the rescission of the contract by the mutual consent of the parties in consequence of such inability, cannot be charged against the plaintiffs in the absence of an express agreement to the effect that they should have no compensation unless the contract between the parties was fully performed. Hodgkins v. Mead, 29 St. Rep., 671; Bach v. Emerich, 35 N. Y. Supr. Ct., 548; Simonson v. Kissick, 4 Daly, 143; Glentworth v. Luther, 21 Barb., 145; Barnard v. Monnot, 1 Abb. Ct. App. Dec., 108.

There having been no express agreement in this case that the plaintiffs should have no compensation unless the contract between the defendant and the trustees was fully carried out, the trial judge properly refused to dismiss the complaint or to direct a verdict for the defendant, and the case was properly submitted to the jury.

The record discloses no exception which is tenable.

The judgment and order should be affirmed with costs.

Mo Ad am, J., concurs.


text:
    Charles Gorham Allen, Resp’t, v. The Manhattan Railway Co., App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Negligence—Damages.
    Plaintiff's wife, who was lame, was leaving defendant's train when it started up, but the guard told her to get off, and on her declining to do so pushed her so that she fell on the platform, fracturing her shoulder in such manner that it became permanently disabled. In an action to recover the pecuniary loss sustained by plaintiff by reason thereof, Held, that a verdict of $3,000 was not excessive.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

      Davies & Sapallo, for app’lt; Edward S. Fowler and A. S. Blackmar, for resp’t.
   McAdam, J.

action was brought by the plaintiff to recover his pecuniary loss resulting from an injury done to his wife by the wrongful'act of the defendant. On Christmas night, 1888, the plaintiff, his wife and two young nieces started to go from the lower part of the city to plaintiff’s home near Seventy-second street and Ninth avenue. They took a train on defendant’s elevated road, and on reaching the station at Seventy-second street and Ninth avenue started to get out. The plaintiff started first, the two little girls following, and Mrs. Allen being last Before Mrs. Allen could get off the train started and, as she .stood in the open door of the car platform, she was told by the guard to get off. She said, “ How can I when the train is in motion ?” The guard then said, “ Get off, I say,” and putting his hand on her back, pushed her. Mrs. Allen was lame, having a stiff knee, and when she was pushed she fell off the platform of. the cars upon the platform of the station, and the train, which was full of passengers, passed on, leaving Mrs. Allen with the plaintiff and two little girls on the platform. The result of the fall was a fracture of the scapula of the left shoulder, which never united, and which left her permanently disabled in her left arm and shoulder. The injury is claimed to be incurable, and she is compelled to wear an iron frame about her body to support the shoulder, and even then it is claimed that she can make no exertion without constant pain. It is also claimed that some of the muscles were permanently detached from the shoulder.

The jury having found in favor of the plaintiff, their verdict settles the facts to be as stated. The proofs satisfactorily establish the result reached by the jury, so that we need not trouble ourselves with the conflict in evidence which arose during the trial. The jury brought in a verdict in favor of the plaintiff for $3,000, and the defendant claims that the amount is excessive.

It is a recognized rule of law that in actions of this kind the loss of the society and companionship of the wife is an element of damage in addition to the loss of service. Maxon v. Del., Lack. & W. R. R. Co., 48 Hun, 172; 15 St. Rep., 650; Cregin v. The Brooklyn Crosstown R. Co., 83 N. Y., 595; 3 Black. Com., 140; Schouler on Husband & Wife, § 143; Stewart on Husband & Wife, § 77; Smith v. St. Joseph, 55 Mo., 456; Brockbank v. Whitehaven R. R. Co., 7 Hurl. & N., 834; Jones v. Utica R. R. Co., 40 Hun, 349.

The claim comprehends the loss which continues during the life of the wife. Green v. Hudson R. R. R. Co., 2 Abb. Ct. App. Dec., 277.

The plaintiff’s wife was no doubt permanently injured, and his loss will continue during her life.

In view of the facts, the recovery was not excessive, but moderate. We have examined the various exceptions taken during the trial to the judge’s charge, and to the requests to charge, and find them to be without merit.

It follows that the judgment and order appealed from must be affirmed, with costs.

Freedman and Gildersleeye, JJ., concur.