text:
    Georgie Petrie, by Guardian, Resp't, v. Frederick Williams et al., App'lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1893.)

    1. Fraud—Attorneys.
    On the trial of an action to recover the value of five promissory notes, of which plaintiff, an infant, claimed to be the owner, it appeared that defendant B. had been employed as an attorne < by plaintiff to bring an action for damages for breach of contract to marry; that the action was commenced, and the defendant therein settled the same by delivering to B. the notes in question, made payable to B.’s order, without plaintiff’s consent; that thereafter defendant W. indorsed one note and procured it to be discounted at a bank; took another from B., giving him therefor certain mortgages; purchased from him a third, and received the remaining notes for a house which he deeded to plaintiff, claiming excessive value, and receiving back a mortgage. W. procured the discount at a bank of all the notes held by him. Held, sufficient evidence to require the submission to the jury of the question of fraud, and to justify a verdict in favor of plaintiff.
    3. Same—Evidence.
    Before the trial of such action and subsequent to the transfer of the notes in suit, defendant B. had been examined in proceedings supplemental to execution, in the absence of defendant W. The testimony thus taken was offered in evidence and objected to in behalf of W., as incompetent and hearsay, and the court ruled that the part of the examination which tended to rebut receipts acknowledging payment by B. to plaintiff was competent. Held, that such evidence was not admissible as against W.
    3. Infants—Avoidance of contract.
    An executory contract relating to the personal property of an infant may he avoided by her during her infancy.
    4. Attorneys—Contract with client.
    An attorney who seeks to avail himself of a contract made with his client must establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and is in every respect free from fraud on his part or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him.
    Appeal from a judgment entered in Jefferson county, March 18, 1892, on the verdict of a jury, and from two orders denying motions for a new trial, made separately by the defendants on the minutes of the trial judge.

      Watson M. Rogers, for app’lt, Williams; Hannibal Smith, for app’lt, Breen; Elon R. Brown, for resp’t.
   Martin, J.

This action was to recover the value of five promissory notes, of which the plaintiff was the owner, and to which she claimed the right of possession. The plaintiff was an infant. When about nineteen years of age, she and one Jeremiah Petrie entered into a contract, by which each agreed to marry the other. While this contract was in existence, and before it was performed, the plaintiff was seduced by Petrie, ,who then refused to fulfill his contract.

While matters between the plaintiff and Petrie were in that situation, she employed the defendant, Thomas H. Breen, to commence an action against Petrie to recover damages for the breach of his marriage contract. In pursuance of this employment, Breen applied for the appointment of a guardian ad litem of the plaintiff, who was appointed December 17, 1889.

On December 19, 1889, an action was commenced by Breen for the plaintiff against Petrie, and on the twenty-first day of the same month an agreement was entered into between her and Petrie for the settlement of the action, whereby Petrie agreed to marry her, and give her his notes for the sum of three thousand dollars. In performance of this agreement, Petrie made his five promissory notes for that sum, four of which were for five hundred dollars each, and one for one thousand dollars, and delivered them to Breen for the plaintiff, and also married her. The notes were taken by Breen in the absence of the plaintiff, and were made payable to him or his ordei-, without her knowledge or consent.

After the marriage and delivery of the notes to Breen, and on December 31, 1889, he attempted to get one of the five hundred dollar notes discounted at the Watertown National Bank, but the bank refused to discount it. Thereupon the defendant, Williams, indorsed it, and procured it to be discounted by that bank for Breen. On the same day Williams transferred to Breen certain mortgages which he (Williams) held on property in the city of Watertown, the title to which stood in the name of Breen’s deceased wife, and received therefor the one thousand dollar note given by Petrie to the plaintiff.

On the fifteenth of January, 1890, the defendant Williams came to Watertown on the suggestion of Breen, and sold Breen a house and lot, worth six or seven hundred dollars, and transferred it to plaintiff, for which he received two other of the five hundred dollar notes, and gave his check to Breen for two hundred and fifty dollars. The consideration named in the deed was fifteen hundred dollars, and the plaintiff was informed that.that was the price paid. When the deed was given to the plaintiff, she executed a mortgage on the premises to Breen for four hundred and fifty dollars, which he subsequently assigned to Williams as security for indorsements made by him for Breen.

On April 16, 1890, Williams purchased the last five hundred dollar note of Breen, and gave him his check for the amount. Thus Williams became the holder of all the notes given to the plaintiff on the settlement of her action, except the five hundred dollar note which he procured to be discounted for Breen. The notes that came into Williams’ possession were transferred by him to the bank before they became due. Thus, through the instrumentality of Williams and Breen, the notes for three thousand dollars, given plaintiff in settlement of her cause of action, were all transferred to a bona fide holder before they became due.

The evidence tended to show that before any of the notes were transferred both defendants knew that the plaintiff was an infant, and that there was a concert of action on their part to secure these notes without paying her an adequate compensation therefor. This is shown both by circumstances and direct proof. It seems impossible to harmonize the circumstances and course of action pursued by the defendants with an intent upon the part of «either to deal justly and fairly with the plaintiff. We think the evidence was sufficient to require the submission to the jury of the question of the good faith of Williams in procuring, indorsing and transferring these notes, and to justify the verdict against him. Vosburgh v. Diefiendorf, 119 N. Y., 357; 29 St. Rep., 448; Canajoharie Nat. Bank v. Diefiendorf, 123 N. Y., 191; 33 St. Rep., 389. It follows, therefore, that the judgment should be sustained, unless the form of the action was improper, or there is some other valid exception which requires a reversal.

But it is said that there was a written agreement between the plaintiff and Breen, by which he was to have, as a compensation for his services, one-half of the recovery or amount secured by-settlement, and that subsequently a written settlement was had between them by which the notes were divided. The answer to this claim is: 1. That the plaintiff testified that she never made any such agreements, and that her signatures to the papers introduced in evidence, including the receipts as well as the agreements for compensation and of settlement, were obtained without her knowledge as to the contents of the papers signed. 2. That she was at the time an infant, and the agreements were voidable, and of no binding force as against her.

The plaintiff testified positively that no such agreement for compensation was made, but that she paid the defendant Breen a retainer of $100 when she employed him, and agreed that he should have $500 out of any amount recovered by her, whether by suit or settlement. The question whether the agreement was as claimed by the defendant, or as claimed by the plaintiff, was for the jury, and it is manifest that it found for the plaintiff.1 An attorney who seeks to avail himself of a contract made with bis client must establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and is in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him. Whitehead v. Kennedy, 69 N. Y., 462; Tragman v. Littlefield, 45 St. Rep., 673.

When tested by this rule, it is obvious that the agreements and receipts relied upon by the defendants cannot stand, if the plaintiff’s testimony is believed. Besides, the plaintiff was an infant, and, therefore, the agreements and receipts were not binding upon her.

The defendants, however, claim that Breen’s services as a lawyer were so far necessary that the plaintiff could make a valid contract therefor, and her infancy was not a defense to such a contract. To sustain this claim, they cite the case of Munson v. Washband, (31 Conn., 303.) An examination of that case discloses that it is not a sufficient authority to uphold their claim. There is a clear distinction between that case and the case at bar. In the Munson case, which was an action somewhat similar to this, it was held that an action could be maintained to recover the value of the services of an attorney when they were necessary to protect the rights of an infant. That proposition is not disputed here. But the plaintiff claims that, although she was liable' for services performed for her by an attorney when necessary for her protection, or the protection of her estate, yet, that she was liable only for the actual value of the services rendered, and was nqt bound by any contract she made as to the amount. There is nothing in the case cited inconsistent with this claim.

While an infant may bind himself for the value of necessaries-purchased or furnished, he is not bound by the agreed price, if it is in excess of the actual value. Baum v. Stone, 12 W. Dig., 353. Indeed, this case was tried upon the theory that the plaintiff was liable to Breen for the actual value of his services, and it was proved that they were worth from one hundred to two hundred and fifty dollars. It quite clearly appears, we think, that the jury allowed the defendants the value of Breen’s services as established by the proof.

Before proceeding further, it will be well to note that the court withdrew from the consideration of the jury all questions relating to the two $500 notes that were transferred by Breen to Williams for his check of $250 and the house and lot, upon which Breen secured a mortgage for $450, which he transferred to Williams. Still, the particulars of that transaction are before us, as a part of the whole transaction between the parties, and disclose the extraordinary zeal and eagerness with which the defendants sought to possess themselves of the property of the plaintiff, and the absence upon their part of any attempt at fairness in their dealings writh her.

By an examination of the appeal book, it will be seen that, after deducting from the amount of plaintiff’s notes the two five hundred dollar notes, a portion of which was invested in real estate, the value of Breen’s services, and the amount which the plaintiff testified that she received of Breen, there was then remaining in defendants’ hands an amount in excess of the verdict rendered. Hence, if the action could be maintained, the recovery was as favorable to the defendants as they could properly ask.

By reference to the complaint, it will be seen that, so far as' material to the question before us, the plaintiff alleged ownership of the notes, that Breen, while acting in her behalf, caused his own name to be inserted therein as payee, and that thereafter the defendants took possession of and converted them to their own use.

The defendants contend that the plaintiff authorized Breen to transfer these notes, and, consequently, that neither he nor Williams was guilty of conversion. The evidence was such as to justify the jury in finding that the defendant Breen transferred the notes in question without any authority whatever from the plaintiff, and that the pretended consent of plaintiff was improperly obtained by Breen. Besides, the plaintiff being an infant, her consent was invalid.

Under the circumstances of this case, we think the plaintiff was entitled to maintain this action. In Stafford v. Roof (9 Cow., 626), where an infant sold a horse belonging to him, but there was no proof that he delivered the horse with his own hand, and the vendee afterwards offered to sell the horse, it was held that trover would lie by the infant even before coming of age.

In Comstock v. Hier (73 N. Y., 269), where a note was indorsed for' a special purpose by the plaintiff, and it was transferred by the makers to defendants in payment of an antecedent debt, and defendants transferred it to a bona fide holder before due, for value, who collected it of the plaintiff, it was held that the plaintiff had an election either of bringing an action of trover for the conversion of the note or for money had and received, to recover the money realized by defendant on sale thereof. The doctrine of this case was also recognized in Farnham v. Benedict (107 N. Y., 159, 173; 11 St; Rep., 450).

In Decker v. Mathews (12 N. Y., 313), it was held that the maker of a negotiable promissory note could maintain an action for its conversion against a person who, before it had any legal inception, wrongfully negotiated it to a bona fide holder for value.

In Laverty v. Snethen (68 N. Y., 522), the plaintiff indorsed and delivered a promissory note belonging to him to the defendant, who gave a receipt therefor stating that it was to be returned the next day, or the avails thereof. The plaintiff instructed the defendant not to let the note go out of his reach without receiving the money, and defendant delivered the note to a third person, under the promise by the latter that he would get it discounted and return the money. He took the note away, and procured it to be discounted, but appropriated the avails. In an action for the conversion of the note, it was held that the act of the defendant in permitting the note to go out of his possession was an unlawful interference therewith, and constituted a conversion. See, also, Carver v. Creque, 48 N. Y., 385; Develin v. Coleman, 50 id., 531: Powell v. Powell, 71 id., 71; Hynes v. Patterson, 95 id., 4; M. E. R. Co. v. Kneeland, 120 id., 134; 30 St. Rep., 782; Comley v. Dazian, 114 N. Y., 161; 22 St. Rep., 813.

Another claim of the appellants is that this action was prematurely brought because the plaintiff was an infant when it was commenced and could not avoid her contracts until she arrived at full age. In considering this question, it must be remembered that the transaction so far as it related to real estate was withdrawn from, the jury, so that the question whether she could avoid her contract relating to real estate before her majority is not before us. The question upon this branch of the case is whether the executory contract of the plaintiff could be avoided by her during her infancy. While there may not be entire harmony in the decisions upon this question, yet, we think, it must be regarded as settled in this state, that an executory contract relating to the personal property of an infant may be avoided by her during her infancy. Bool v. Mix, 17 Wend., 119; Stafford v. Roof, 9 Cow., 626; Chapin v. Shafer, 49 N. Y., 407; Sparman v. Keim, 83 id., 245; Beardsley v. Hotchkiss, 96 id., 201, 211.

The appellants also contend that the plaintiff could not recover in this action without tendering to the defendant, Breen, all she received. To this there are two answers: First, that the defendants were permitted on the trial to prove all that had been advanced the plaintiff, and the jury deducted that amount from the value of the notes other than those delivered to Williams for real estate; and, second, all the money that had been paid to the plaintiff by Breen had been expended or squandered by her during her infancy. Under these circumstances, the defendants had no moral or legal right to require the plaintiff to restore the money received by her, as they were allowed the full benefit of the amount thus paid, and the plaintiff could not make such restoration. Green v. Green, 69 N. Y., 553.

Having now considered all the questions raised by the appellants relating to the plaintiff’s right to maintain this action, and having reached the conclusion that it can be maintained, and that the evidence was sufficient to sustain the recovery herein, the exceptions taken upon the trial to the rulings of the court on the reception and rejection of evidence, and to its instructions to the jury, remain to be considered.

At the close of the charge, the appellants’ counsel stated: “ I think your honor has already charged it; that if the jury find that the notes were transferred to Mr. Williams with the assent, or by the direction of the plaintiff, this action for conversion does not lie against Williams.” To which the court replied: “Yes; but I charge at the same time that if she was an infant, her assent to it would not confer authority, because she had no power to authorize it, being an infant.” Whereupon the defendants’ counsel said: “ I desire to except to so much of your honor’s statement as is to the effect that her infancy would prevent her giving an assent which would defeat an action of trover. The Court: You may have that exception.” The defendants also excepted “ To the submission of the question of the conversion of the one thousand dollar note to the jury, and also to the submission of the question of the conversion of the five hundred dollar note which was purchased April 15.” The questions already considered are the only ones raised by these exceptions. As we have already discussed them, and arrived at a conclusion adverse to the appellants, no further consideration of them is required.

Before the trial of this action, and subsequent to the transfer of the notes in question, the defendant Breen had been examined in proceedings supplemental to execution. The examination was in the absence of the defendant Williams. The testimony thus taken was offered in evidence. It was objected to on behalf of the defendant Williams as incompetent and hearsay. Upon the questions raised by this objection, the court ruled as follows: “ The Court: I hold that such part of said examination as tends to rebut the receipts acknowledging payment by Breen to plaintiff is competent. To that extent I overrule the objection.” This evidence was offered after the defendants had introduced the receipts, and tended to corroborate the plaintiff’s claim that Breen had not paid her the amount mentioned in the receipts. It was admissible against Breen, but not as against the defendant Williams. Scofield v. Spaulding (54 Hun, 523; 28 St. Rep., 108). In that case we examined this question quite fully, and, therefore, deem any further examination of it by us quite unnecessary.

There are other questions to which attention has been called, but as the judgment must be reversed for the error already pointed out, and as it is improbable that those questions will arise upon another trial, no good purpose can be served by a discussion of them at this time.

As a majority of the court are of the opinion that the judgment should be affirmed as to the defendant Breen, and reversed on the exceptions, and a new trial granted, with costs to abide the event, as to the defendant Williams, it follows that the judgment as to the defendant Breen and the order denying his motion for a new trial should be affirmed, with costs, and that the judgment as to the defendant Williams and the order denying his motion for a new trial should be reversed on the exceptions, and a new trial ordered, with costs to abide the event

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George E. Glines, Rec'r, Resp't, v. The Binghamton Trust Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Receiver—Appointment by final judgment supersedes temporary RECEIVER,
    The appointment of a receiver by the final judgment supersedes all previous action taken for the preservation of the property, including the appointment of a temporary receiver, and an injunction restrainingthe final receiver from interfering with the temporary receiver is erroneous.
    Appeal from an order made at special term restraining the defendant from hindering, delaying or interfering with George B. Glines, the plaintiff, in the discharge of his duties as receiver of the Supreme Sitting of the Order of the Iron Hall.

      Edmund O'Connor (Alfred Ely, of counsel), for app’lt; Howard H. Morse and George Norris, for resp’t.
   Per Curiam.

By § 713 of the Code, provision is made for the appointment of receivers before final judgment and by the final judgment. Subdivision 1 of this section provides that a receiver may be appointed “ before final judgment, on the application of a party who has established an apparent right to or interest in the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured or destroyed.” The object of this provision is clearly for the preservation of the property until the court, by its final judgment, shall make such disposition of it as justice requires, and appoint a receiver to carry its judgment into effect. Subdivision 2 of the same section provides for the appointment of a receiver by final judgment. That provision is that a receiver may be appointed “by or after the final judgment, to carry the judgment into effect, or to dispose of the property according to its directions.”

It is apparent that the appointment of the receiver by the final judgment to carry the judgment into effect or to dispose of the property is the exercise of a different and distinct power conferred upon the court from that which is given for the purpose of preservation of the property during the pendency of the action; and the exercise of this final power necessarily supersedes action which has been merely temporary in its character for the preservation, and taken solely for the protection, of the property until such final power is exercised. By the final judgment in the action, in Broome county, of Mosher v. Supreme Sitting of Order of Iron Hall, this court makes provision for the final disposition of the property in this state of the foreign corporation, and appoints the Binghamton Trust Company, the defendant herein, permanent receiver of the property, assets and funds of the defendant within the state of New York, and authorizes and directs it to collect, demand and receive, and to distribute the same among the persons entitled thereto, as in said decree directed. This final judgment was, therefore, the final direction of the court as to the disposition of the property, and the appointment of a receiver to carry such final judgment into effect seems to have superseded all previous action taken for the purpose of the preservation of the property until a judgment should be entered by the court for its final distribution, including the appointment of temporary receivers to preserve the property. The order appealed from enjoins the Binghamton Trust Company, the permanent receiver, from performing the duties which were imposed upon it by the judgment appointing it; and, as it was the duty of the defendant to carry out the provisions of such final judgment, the order was erroneous. No question is presented on this record as to a conflict of jurisdiction between different courts, as to which court shall administer the estate, both actions being in the same court; the only question being as to the method by which the court shall protect and distribute this property. Therefore, many of the authorities‘which have been cited on this appeal have no bearing upon the question presented. We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs, and the temporary injunction vacated.

Yak Brunt, P. J., and Ingraham, J., concur.


text:
    Charles O. Waite, Resp't, v. The F. J. Kaldenberg Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Severance—Costs—Code Civ. Pro., § 511.
    Where an action is severed under § 511 of the Code, the plaintiff on entering judgment for the part admitted is not entitled to costs unless he elect not to continue the action as to the remaining part of the claim.
    Appeal from an order denying defendant’s motion to modify the judgment entered upon an order of severance, by striking off the costs, which had been allowed by the clerk upon taxation.
    In an action for a sum alleged to be due plaintiff as agent for the sale of defendant’s goods, the answer admitted an indebtedness for a lesser sum. An order of severance was granted, with leave to plaintiff to continue the action as to the remainder of his claim, which he elected to do. On entry of judgment for the amount admitted to be due, the clerk taxed costs in favor of plaintiff.

      F. A. Thomson (James J. Allen, of counsel), for app’lt; Douglass & Minton (John B. A. Mullaly, of counsel), for resp’t.
   Per Curiam.

Section 511 of the Code, under the authority of which this judgment was entered, gives to the moving party the right to a judgment for the part admitted to be due. Ho provision is made for an award of costs to him upon the entry of that judgment, unless he elects not to continue the action for the remainder of the claim, in which case he is awarded costs as upon a final judgment in any other case. If, therefore, he elects to continue the action, it seems to have been the intention of the legislature to award him costs only in case he succeeds, and recovers an amount which would entitle him to costs had he originally brought his action for the amount not conceded to be due. The right to this judgment depends upon this section of the Code, and the only judgment that the plaintiff on such an application can recover is that allowed by this section, which does not include costs, except upon the condition that he elects not to continue the action for the amount not conceded to be due. The case of Bradbury v. Winterbottom, 13 Hun, 536, which, upon its face, may seem to be in conflict with these views, however is not, because the judgment in that case was entered under an offer made under § 758 of the Code of Civil Procedure, and the question there was whether or not the plaintiff was entitled to costs upon such offer. The order must, therefore, be reversed, and motion granted, but without costs.

Van Brunt, P. J., and Ingraham, J., concur.


author: O'Brien, J. Follett, J. (dissenting).

text:
    Stella Stafford, Resp't, v. The Morning Journal Association, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Libel—Words' actionable per se.
    The following article, inserted in a newspaper as an advertisement, in a column headed : “Astrology;” “Le Huray Sisters; Blanche, Stella and Allien. Just from Paris. Massage, French style. Love secrets. How to get a husband. Inclose stamp. Valuable information for ladies by means of cards. Le Huray Sisters [address],” is libelous per se.

    3. Same—Evidence—Good Chakacter.
    Where, in an action for libel, the complaint alleges plaintiff’s good character, and the answer that defendant had no knowledge or information sufficient to form a belief as to the allegation, it is not reversible error to allow the plaintiff to give proof of her allegation, even if the issue was superfluous and immaterial. (Follett, J., dissents.)
    3. Same.
    In an action against a newspaper for libel in publishing a certain advertisement, it is proper to read the entire column wherein it was published, in order to show its situation and surroundings.
    4. Same—Good Faith.
    _ Where the question of the good faith with which an article was published as an advertisement, in the belief that it was authorized by plaintiff, is at issue, it is proper to allow evidence to show that defendant’s manager had refused to exclude similar advertisements, and had charged therefor a higher rate than for ordinary advertisements.
    6. Same.
    Evidence of letters of an insulting character received by plaintiff, and of visits made by men in the night time to her residence, is competent to show in what sense the advertisement was understood, although no special damage on this account was alleged in the complaint.
    6. Same.
    Where it is shown that plaintiff’s brother-in-law caused the libelous advertisement to be inserted in defendant’s newspaper, evidence that shortly thereafter he had been adjudged a lunatic is competent to show the reason of plaintiff’s failure to produce him as a witness.
    Appeal from judgment upon a verdict in favor of plaintiff, and an order denying a motion on the judge’s minutes for a new trial.

      B. F. Einstein, for app'lt; Roger M. Sherman and James M. Smith, for resp’t.
   O'Brien, J.

The action was brought to recover damages for the publication in the Morning Journal of an article complained of as libelous, and which reads as follows:

“Le Huray Sisters; Blanche, Stella and Allien. Just from Paris. Massage, French style. Love secrets. How to get a husband. Inclose stamp. Valuable information for ladies by aid of cards. Le Huray Sisters, 444 2nd Ave., Mount Vernon. M. Y.”

The defendant did not, in its answer or on the trial, claim that this was in any sense a privileged communication, nor did it attempt to justify, but set up and proved in mitigation that the matter was published as an advertisement received from a general advertising agency in the regular course of its business, and under the honest belief that it was authorized by the plaintiff; that, when it was informed by plaintiff’s husband that it was unauthorized by her, it at once offered to publish any retraction or explanation or correction in the columns of its newspaper, which offer was declined. The trial resulted in a verdict for $10,000, and all the questions presented upon this appeal relate to the exceptions taken-to the admission or exclusion of evidence, and to requests to charge proposed by plaintiff, and to refusals to charge as requested by defendant. It is not claimed that the verdict is so large as to indicate that the jury were influenced by passion, partiality, prejudice or corruption, and having in mind the rule that damages in cases of this kind are largely within the discretion of the jury, and regard being had to the nature of the libel, we do not think that we should disturb such verdict upon the ground that the damages were excessive.

The first exception urged is the permitting evidence to be given of the general reputation of the plaintiff for chastity and virtue. The complaint alleged that plaintiff was of “good character and repute, and enjoyed the respect of her friends and acquaintances, and of the community.” ' The answer stated that the defendant had “ no knowledge or information sufficient to form a belief as to the allegations contained in the first paragraph of said complaint.” Notwithstanding the issue thus presented, it is claimed that the evidence given by plaintiff in support thereof should not have been received; that this, being a superfluous and immaterial allegation, invited the denial, which was equally immaterial, thus rendering the issue itself immaterial, with respect to which the evidence could not have been received. We do not regard it as entirely clear that plaintiff was bound to rest upon the legal presumption as to her good character, in view of the issue thus raised, but if we assume that the appelant is right, and that the issue was a superfluous and immaterial one, no injury resulted to the defendant from such proof, because, apart from any testimony, the plaintiff would have been entitled to have the court charge that the law presumed her good character, in the absence of any claim or testimony to the contrary, was established; and we have been referred to no case wherein a judgment has been disturbed for admitting evidence in support of a fact which the law presumed.

The next exception relates to questions asked of plaintiff, upon her redirect examination, directed to eliciting information as to whether or not her mother had succeeded in getting rid of the lease of the house in Mt. Vernon, and what difficulty was experienced in finding a place for the sister. It is true that neither the mother nor sister was a party to this action; but, when we consider the justification afforded by the defendant for such testimony, we do not think that it can be regarded as a violation of the discretion vested in the court in extending somewhat the scope of plaintiff’s testimony. The defendant had indulged in a cross-examination which was directed to discrediting the plaintiff’s testimony relevant to her sufferings from the publication, by showing that thereafter she continued to reside at the place mentioned in the advertisement. We think that the inference thus sought to be raised against the plaintiff it was proper to rebut, on redirect, by allowing plaintiff to state the efforts v/hich her mother had made to remove therefrom, and the impediments, among other things the sister’s sickness, which delayed such removal.

The third exception relates to the introduction of the column in the defendant’s paper headed “Astrology,” and in which column the libelous advertisement referring to plaintiff was published. This exception we regard as untenable; for, as said in Kingsbury v. Bradstreet Co., 116 N. Y., 215; 26 St. Rep., 520, “the situation and surroundings of the most innocent expression may make it libelous, but they must be distinctly alleged and proved. The mere position in a newspaper of an advertisement apparently inoffensive, but surrounded by suggestive items, may make it a question for the' jury whether it is libelous or not."

The next exceptions to be considered are directed to evidence relating to the connection of Albert Pulitzer with the defendant. Such evidence tended to show that he was the editor and manager of its property and assets, and was empowered to determine what advertisements should go in or stay out; that the character of advertisements similar to those published under the head of “Astrology ” was called to his attention, and that he refused to exclude them from the paper; also, that prior publications, substantially in the same form, appeared in the “Astrology ” column, for which a higher rate was charged than for other kinds of advertisements. Where, as here, the question of the good or bad faith with which a libelous article was published was at issue, the bearing that notice or knowledge of the character of such advertisement would have thereon rendered, we think, such testimony competent

The next exception relates to the excluding of certain questions asked by defendant on recalling plaintiff, as to what her husband told her as to his object in going to the office of the Morning Journal. Considering the order of proof, which is always in the discretion of the court, and the absence of any good argument advanced for holding the plaintiff bound by her husband’s conduct, or by the object which, he had in view in visiting the office of the defendant, we do not think that the excluding of such evidence was error.

. _ The next exceptions relate to the testimony admitted of letters of an insulting character received by the plaintiff, and also of visits made by men in,the night time to plaintiff’s residence. It is true that no special damage upon this ground was alleged in the complaint; but we think it was competent to show in what sense the publication was understood by persons who, either by sending letters, or making untimely visits in the night, annoyed and insulted the plaintiff.

The defendant, upon the close of plaintiff’s case, moved to dismiss the complaint, and again, at the close of all the testimony, asked for a direction of a verdict in its favor, upon the ground that the article was not libelous per se. We think that the denial of both these motions was right, and, in view of the very satisfactory discussion of all the questions involved upon both motions, to be found in several recent cases" in the court of appeals upon the subject of libel, we deem further discussion unnecessary. Moore v. Francis, 121 N. Y., 203; 30 St. Rep., 467; Morey v. Morning Journal Ass'n, 123 N. Y., 211; 33 St. Rep., 49; Hughes v. Jones, 116 N. Y., 73; 26 St. Rep., 511; Warner v. Press Publishing Co., 132 N. Y., 181; 43 St. Rep., 633.

In addition to these exceptions, which we have thus briefly referred to, a great number are presented by the refusals to charge as requested by the defendant, and to exceptions taken to requests as made by the plaintiff. These we have considered, and fail to find that any error was committed in the rulings of the trial judge, who not only passed upon an unusual number of requests presented by defendant, but, in a fair and impartial charge, presented every question in a manner as favorable as defendant could legally demand.

The most serious exception urged upon our attention is that relating to the admissibility of the inquisition and adjudication that one George H. Storrs was a lunatic. It was shown that this man, who was the husband of plaintiff’s sister, was responsible for the insertion of the libelous advertisement. His relation to the plaintiff, had he not been produced, would naturally have been commented upon unfavorably; and we do not understand that the appellant contends that it was incompetent to show that at the time he presented the advertisement he was a lunatic, thus rebutting any inference that it was authorized in any way by plaintiff. The claim, as we understand it, is that the acts of Storrs, given in evidence, were prior to April, 1890, while the inquisition and adjudication that he was of unsound mind were in January, 1891. The record shows that the commissioners to inquire as to whether Storrs was of unsound mind, and with respect to other matters, were appointed by orders of this court - entered on July 10 and 14, 1890, some few months subsequent to the publication. It may be that such a record is not even presumptive evidence that Storrs was of unsound mind at the time he was guilty of the acts given in evidence; but upon another ground, namely, to show the reason for the failure to produce Storrs as a witness for plaintiff, we think it was competent. Upon examining the entire case, we fail to find any error sufficient to justify our interfering with the verdict, and are, therefore, of the opinion that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Follett, J. (dissenting).

I think this judgment is a meritorious one, and should like to see it sustained, but am unable to concur in its affirmance, for the reason that I think the court erred in receiving evidence of the plaintiff’s good character, it not having been assailed by the defendant. Houghtaling v. Kilderhouse, 2 Barb., 149, affirmed 1 N. Y., 530; Pratt v. Andrews, 4 id., 493; Pink v. Catanich, 51 Cal., 420; Matthews v. Huntley, 9 N. H., 146; 1 Whart. Ev., §47, and cases there cited; 1 Tayl. Ev. (8th Eng. Ed.), § 362. In an action to recover damages caused by the publication of a libel, an allegation in the complaint that the plaintiff’s character is good, and a denial thereof in the answer, do not raise a material issue. Chapman v. Pickersgill, 2 Wils,, 145-147; 1 Chit. Pl. (16th Amer. Ed.), 243 ; Moak Van. Santv. Pl., 37, 255; Townsh. Sland. & U (4th ed.), §§ 313, 314.

A plaintiff does not become entitled to support by evidence an immaterial allegation which he has alleged in the complaint because the defendant has chosen to deny it. The first fault was the plaintiff’s, in tendering the issue. Murray v. N. Y. Life Ins. Co., 85 N. Y., 236; Pink v. Catanich, supra; Abb. Tr. Brief, § 734. I agree that the reception of evidence of certain facts which the' law presumes to exist would not be error. For example, if the plaintiff should allege that the supreme court had jurisdiction to render a particular judgment, evidence that it did have, though unnecessary, would not be a sufficient ground for reversing a judgment. And so it would be in regard to many facts which the law presumes to exist. But.this is an action sounding in damages, which are largely in the discretion of the jury, and evidence that the plaintiff’s character was good would tend to greatly increase them. More than this, the plaintiff was a witness in her own behalf, and evidence of good character would increase her credit with the jury. The law presumes that witnesses are of good character. Nevertheless, it would be error for a party to show that the witnesses which he was about to call were of good character, or that witnesses that he had called were of good character, unless they had been assailed by his' adversary. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


author: Follett; J.

text:
    Edgar L. Ridgway, Adm'r, Resp't, v. Charles P. Bacon, Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Appeal—Demurrer.
    . An appeal does not lie from an order sustaining or overruling a demurrer before the entry of an interlocutory judgment thereon, and then both may be appealed from; but to authorize the court to entertain such appeal the record must show such entry.
    Appeal from an order of the special term overruling the demurrer to the complaint.

      Charles Donohue, for app’lt; Sumner C. Chandler, for resp’t.
   Follett; J.

The appellant demurred to the complaint upon two grounds: (1) That causes of action have been improperly uni ted ; (2) that the complaint does not state facts sufficient to constitute a cause of action. The special term ordered “ that said demurrer be overruled, and that plaintiff have judgment thereon for the relief demanded in the complaint, but with leave to the defendant to withdraw his demurrer, and put in an answer within twenty days, on payment of costs as taxed herein by the clerk of this court.”

This order is dated October 4, 1892, but when it was entered does not appear. An order cannot be appealed from until after it is entered. In re New York Cent. & H. R. R. R. Co., 60 N. Y., 112. December 15, 1892, the defendant appealed from the order overrating the demurrer, and the interlocutory judgment entered herein upon' the order of Mr. Justice Ingraham on the 28th day of November, 1892, and from each and every part thereof.” No interlocutory judgment is contained in the record, and the only evidence that we have that one has been entered is the recital in the notice of appeal. This is not sufficient, and the court cannot review a judgment not before it. An appeal does not lie from an order sustaining or overruling a demurrer before the entry of an interlocutory judgment thereon, and then both may be appealed from. Cambridge Valley Bank v. Lynch, 76 N. Y., 514; Welch v. Platt, 32 Hun, 194; Miller v. Sheldon, 15 id., 220; Lacustrine F. Co. v. Lake Guano, etc., Co., 16 id., 484; Garner v. Harmony Mills, 45 N. Y. Supr. Ct., 148; Baylies New Trials, 50. Hand v. Sup'rs of Columbia Co., 31 Hun, 531, is overruled.

The order overruling the demurrer and an interlocutory judgment may have been entered, but, if so, the facts are not disclosed by the record, and the appeal cannot be heard. The case should be stricken from the calendar, and leave granted the appellant to print new papers disclosing the true state of the record in this action.

No motion having been made by the respondent to dismiss the appeal or strike it from the calendar, no costs are allowed.

Van Brunt, P. J., and O'Brien, J., concur.


author: Dykman, J.

text:
    Lucy S. Morrison, App'lt, v. The Metropolitan Telephone Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Negligence—Elevators—Nonsuit.
    The elevator in defendant’s building was in good order, and was just started on an upward trip, but some of the electric apparatus was being repaired, and a man stood at the open door to pass in tools and guard the entrance. Plaintiff’s intestate, who was a letter carrier, rushed to the door and crowded past this man, who gave no warning or obstruction, and fell down the shaft. Held, that it could not be said, as matter of law, that deceased had not a right to rely on the appearances presented, or that a verdict in favor of plaintiff would be destitute of support, and that a dismissal of the complaint was error.
    Exceptions ordered heard, in the first instance, at general term, after nonsuit directed by the court.

      Thomas E. Pearsall, for app’lt; Burton N. Harrison, for resp’t.
   Dykman, J.

This is an action, under the statute, to recover damages for the death of the plaintiff’s intestate.

After the testimony was closed on both sides at the trial, the complaint of the plaintiff was dismissed and the exceptions were directed to be heard at the general term in the first instance.

The intestate of the plaintiff met his death by falling down an elevator shaft in the building of the defendant, in the city of New York, while the elevator was, above the floor.

The elevator itself was in working order, but an instrument or apparatus called the buzzer, used like an electric bell to make signals, was undergoing repair.

An assistant of the man who was making the repairs to the buzzer, or putting it in order, stood in the doorway to pass in the necessary tools, and also to guard the door, which was necessarily kept open, or partly so.

The deceased was a mail carrier, and as he entered the first floor of the building he paused for a few seconds to assort the letters which he was to deliver in the building, and then he rushed to the door of the elevator shaft, shoved or crowded past the man who was standing in the doorway and fell down the shaft, and received the injuries which resulted in his death. The case is near the border line, and by no means free from difficulty.

In the first place, the appellant is entitled to the benefit of every inference which can legitimately be drawn in her favor from the facts and circumstances disclosed upon the trial, because she may assume here that the jury would have made such deduction.

Further, if the facts and circumstances be such that the inferences to be drawn from them are not certain, and where different minds may reach dissimilar conclusions, and a process of reasoning is necessary to determine whether negligence is to be attributed to a party, it is for the jury to make the deduction. Hart v. Hudson River Bridge Co., 80 N. Y., 622.

Equally well settled is the rule that the plaintiff in actions like this must prove that death was caused solely by the negligence of the defendant, and that the want of care on the part of the deceased in no way made any contribution to the result, and the two points must be established by competent proof and must not be left to speculation. The plaintiff has the burden upon the whole case. Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y., 332.

“It is not enough to authorize the submission of a question as ■one of fact to the jury that there is some evidence; a scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendant would not justify the judge in leaving the case to the jury.” Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y., 356.

Nor are judges any longer required to submit a question to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Dwight v. Ins. Co., 103 N. Y., 359; 3 St. Rep., 115.

These are plain rules and easily understood, but the great difficulty in a border case lies in their application.

The case of Tousey v. Roberts, 114 N. Y., 312; 23 St. Rep., 223, is somewhat like this, but the facts were stronger against the defendant than they are here.

That was an elevator case. The husband of the plaintiff leased rooms in an apartment house owned by the defendant, in the city of New York, and the usual mode of reaching such apartments was by an elevator operated by the defendant for the accommodation of his tenants.

The door through which the elevator car was entered from the ground floor could be opened from the outside.

The plaintiff entered the hallway from the street door between six and seven o’clock on the 7th day of May, 1883. There was no artificial light in the hallway, as she approached the elevator the door was thrown open by a boy who had frequently operated the elevator, but was not employed for that purpose. The plaintiff stepped through the door, and as the car was above she fell to the bottom of the shaft and was injured.

In that case the court said, as the defendant operated the elevator for the benefit of his tenants, he was required to exercise due care for their safety and was liable to them for the negligence of his employes in its operation. So it must be said here, that as the defendant operated the elevator for the benefit of persons having business in the building, it was required to exercise due care for their safety and liable for the negligence of its employes in its operation.

As yet we have but little assistance from the adjudicated cases. In the Tousey case there were no artificial lights and the accident happened in the evening. Here the accident was about half past one in the afternoon and there was plenty of artificial light, so much that the workmen could work inside of the shaft.

But there, as here, the door leading to the car in the shaft was open. There the court said that it was not, as matter of law, contributory negligence on the part of the plaintiff to pass through without stopping to look or listen.

But there the door was unguarded, and here it was guarded. Does that change the case if the guard was ineffectual ? The door was open, or partly so, and a man stood in it to prevent persons from passing, but why he was there the deceased did not know and could not know. He saw the man and went past him, but had he any means of knowing why he was there, or whether he had any business there ? The man gave no warning and made no resistance against the passage of the deceased. Might not the deceased have fairly believed either that the man bad come from the car, or was about to enter it, or was standing there for no purpose? He saw the door open, or partly so, and the shaft well lighted as if everything was regular, and he received no warning,, saw no obstruction, and met with no opposition.

If the man was placed there as a guard, it was his duty to use all proper means to prevent people from entering the doorway, and instead of performing that duty he did nothing but stand still and remain silent.

Was he not in that respect guilty of negligence which must be attributed to the defendant ?

The deceased man was doubtless in haste, all are in haste at mid-day in that great city, and it is assumed to be no uncommon sight to see persons around the door of an elevator. It is not supposed to be a place of danger to be approached with caution, and if persons are standing at the door it would be no unnatural assumption to assume that they were either there for no purpose or were going in or coming out.

It must be .borne in mind that this elevator was in full operation, and the car had but just started on an upward trip.

Under all these circumstanced we cannot say that the inferences to be drawn from them are certain and uncontrovertible and that different minds might not reach diverse conclusions.

We cannot say, as a matter of law, that the deceased had not the right to rely upon the appearances presented, and act as he did, or that a verdict in favor of the plaintiff would be destitute of support.

It was, therefore, the peculiar province of the jury to draw the proper inferences, and not the court.

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

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Leonora S. Gray, Resp't, v. William T. Baker et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Depositions—Examination before trial—Libel.
    An order for the examination of the plaintiff in an action of libel should not be granted for the purpose of enabling the defendant to prepare his answer, to consist of a general denial and the truth of the alleged libelous matter.
    Appeal from order vacating an order for the examination of plaintiff before trial.
    Action for libel imputing unchastity to plaintiff. The order for examination of plaintiff was procured to enable defendants to prepare their answer, the affidavit stating that the defense desired to be interposed was “ a general denial and the truth of the alleged libelous matter, if they shall be able to interpose such defense.”

      Henry F. & James Coupe, for app’lts; David J. Newland, for resp’t.
   Barnard, P. J.

The papers show that the defendants published, of and concerning the plaintiff, very injurious charges and imputations affecting her character for chastity. The publication is based upon allegations of fact which ought to have been known to the defendants before the publication was made. The defendants seek to examine the plaintiff before answer so as to determine from her examination whether the defendants will be able to answer that the libel published was true.

The case of Miller v. Brooks, 48 St. Rep., 146, is a decisive authority against upholding an order for such purpose. The court in that case upheld an order vacating an order for the examination of a plaintiff before answer.

The order appealed from should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


text:
    John T. Barnard, Adm'r, Resp't, v. John F. Gantz et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Case—Amendment.
    An order directing the insertion in °the case on appeal to the court of appeals of the words “the foregoing contains all the evidence upon the trial,” where the same have been omitted by inadvertence, is a proper exercise of discretion.
    Appeal from order amending a case on appeal to the court of appeals.

      Hatch & Wickes (L. K Warren, of counsel), for app’lts; George G. Barnard (F. B. Barnum, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order made at special term directing the insertion m the printed case of these words: "The foregoing contains all the evidence upon the trial.”

The cause has been tried before a referee who dismissed the complaint, that judgment was reversed by the general term and now the defendants have appealed to the court of appeals.

The statement that the case contained all the evidence was omitted through inadvertence, and the plaintiff is fearful that the omission may imperil his success in the court of appeals.

We think the granting of the order was a wise exercise of the discretion of the«special term.

The rule requiring the statement is technical at best and the courts will not permit technicalities to prevail over or stifle merits.

The order should be affirmed, with costs and disbursements.

Babnaed, P. J., and Pbatt. J., concur.


text:
    John Bohleber, App'lt, v. August Waeldin et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Assignment—Insubance policy—Redemption.
    Plaintiff and his wife assigned to defendant S. a policy on plaintiff’s life payable to the wife, the assignment making the policy payable to 8., “as interest may appear.” In an action for redemption the complaint stated that the assignment was made when plaintiff was poor and was given on a promise by 8., for whom plaintiff worked, to pay the premium and keep the policy alive. The answer alleged that the assignment was for a full and valuable consideration. Plaintiff put in evidence the policy and assignment and rested, when the complaint was dismissed. Held, error; that plaintiff when he proved the assignment qualified by the words stated was entitled to an accounting and a re-assignment on payment of what was due.
    Appeal from judgment dismissing the complaint for failure of proof.
    Action for an accounting of premiums paid by the defendants or either of them on the policy of insurance in question, and that upon payment of the amount found due defendants deliver up two assignments of a policy of insurance on plaintiff’s life, and assign said policy to him. Plaintiff on the trial put in the documentary evidence and rested, whereupon the court dismissed the complaint for failure of proof.

      Fernando Solinger, for app’lt; William A. Guck (S. T. Maddox, of counsel), for resp’ts.
   Barnard, P. J.

It was proven on the trial that the plaintiff, in 1877, took out a policy of life insurance on his own life, payable on his death to Mary Bohleber, his wife, and on her death to the plaintiff. Presumably the plaintiff paid the quarterly premiums to the Equitable Life Insurance Society, which company issued the policy, up to the fall of 1889. On the 14th of December in that year the plaintiff and his wife assigned the policy to the defendant, Charles Schmidt. Schmidt, on the 28th of March, 1892, assigned the policy to the defendant Waeldin. The title to assignment to Schmidt was qualified by the words “ as interest may appear.” These are common words, and have a definite meaning. It is a part of a transaction thus limited that the assignee can recover no more than he, as between the parties, has advanced upon the policy, and the plaintiff the remainder. Mussey v. Atlas Ins Co., 14 N. Y., 79; Pitney v. Glens Falls Ins Co., 65 id., 6.

With this fact in the case, the plaintiff was entitled to an accounting, and upon payment-of what was due to a re-assignment. His complaint was one to redeem, and the defendant Schmidt claimed the assignment was for a full and valuable consideration. This was an evasive issue. The plaintiff’s case was stated clearly. That the assignment was made when the parties insured were very poor. That the plaintiff lived with defendant and worked for him, and that the assignment was made upon Schmidt’s promise to pay the premiums and keep the policy alive. Of course, this was a good consideration, but it only secured the assignee for his payments under the assignment, and an answer that the assignment was for an adequate consideration fell short of what was required. The plaintiff had a right, therefore, when he proved the assignment, qualified bj' the words that tbe assignee was to hold the policy for all interests, to assume his own, proven by the policy, and to call on the assignee Schmidt for proof of his interest, so that he could repay all which Schmidt had paid on the faith and security of the assignment. Elsberg v. Sewards, 49 St. Rep., 778.

The subsequent assignment of the policy to the defendant Waeldin is of no importance. Schmidt could only sell what he had to sell, and Waeldin took his title subject to the plaintiff’s right to redeem if he made out a case to redeem.

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

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Application for a writ of certiorari to The Board of Sewer Commissioners of the Village of Port Richmond.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Villages—Sewers—Laws 1889, chap. 875.
    A system of sewers, in pursuance of chap. 375, Laws 1889, as amended by chap. 316, Laws 1891, was submitted to the electors of the village and rejected by them. Thereafter, a petition for the construction of a sewer in a certain street was presented by the requisite number of owners of land on said street, and the commissioners, after a hearing on notice, determined to construct a sewer not only on that street, but on other streets contained in their plan, Held, that they thereby exceeded their authority; that the purpose of § 8 was to provide a method by which owners on a street could procure the construction of a sewer therein disconnected from the general plan.
    2. Same—Cost of construction.
    The provision of the act allowing the commissioners to issue certificates of indebtedness to pay for the construction of sewers was intended to apply only to the execution and completion of the general system of sewerage, while the expenses of constructing a sewer under a petition are to he ccllected as provided in § 8, viz.: by assessing the expense thereof on the property benefited.
    Certiorari to review the action of the board of sewer commissioners in relation to the construction of certain sewers in the village.

      George Tiffany, for relator; John Croak, for resp’ts.
   Dykman, J.

This is a certiorari to the board of sewer commissioners of the village of Port Bichmond, on Staten Island, to review their action in relation to the construction of certain sewers in that village.

Boards of sewer commissioners in the incorporated villages of this state are organized, and their powers and duties are defined by chapter 375 of the Laws of 1889, and chapter 316 of the Laws of 1891 amendatory thereof.

Under those statutes the boards of sewer commissioners derive authority to construct sewers in two modes, or, in other words, those statutes specify two methods by which the boards of commissioners of sewers obtain authority for the construction of sewers.

One by a special election for the purpose of determining by a vote of the electors whether sewers shall be constructed according to a plan proposed by the board, and the other by a petition.

As the proceedings under review were instituted by the latter method, it will be unnecessary to examine or discuss the former further than to say that a general plan of sewerage was submitted to the people at such an election and rejected.

Subsequent to such rejection a petition, signed by the owners of more than one-half of the lands fronting on more than five hundred lineal feet of South avenue, one of the public streets of the village through which a sewer was projected on the plan of the sewerage system of the village which was rejected, was presented to the board of sewer commissioners, requesting the board to construct a sewer through South avenue from the rapid transit railroad running north to Newark bay.

Thereupon the board proceeded in the manner specified in § 8 of the statute in respect to notices and hearing persons in favor of and against the construction of that portion of the sewer system, and thereafter determined to construct a sewer not only through South avenue, but also through Arlington place and Arlington avenue.

To provide funds for the payment for the sewers the board issued certificates, of indebtedness.

It is now insisted by the relator that the board has exceeded its jurisdiction, and that it had no authority to construct a sewer except in South avenue.

After the rejection of the general plan by the people the board was destitute of authority to construct a sewer, until it was set in motion by a petition under § 8.

That section, as amended, provided that whenever a petition should be presented to the board signed by the owners of at least 500 lineal feet of any of the lands fronting on any street, lane or alley through which a sewer was projected on the plan of the sewerage system of such village for the construction thereof, to be paid for wholly by the owners of the lands specially benefited, then the board should give notice in a certain manner specified of a time and place when the board would meet and hear persons interested, for and against the construction of such portion of the sewer system.

At such meeting the board was required to take proof as to the persons signing the petition being the owners of a sufficient quantity of lands-fronting on said street as therein required, and their conclusion upon that question was made final.

If after such hearing the board determined to construct such portion of the system of sewerage they were to proceed and do so.

The question is whether the board could do more under the petition than construct a sewer in South avenue, and that is to be determined by a construction of § 8, as amended.

The section itself is not free from obscurity, but a general view of its object, and the office, it was designed to perform, renders its meaning and intention reasonably certain.

Its purpose was to provide a method by which the property owners upon a street could procure the construction of a sewer therein disconnected from the general plan.

Two contingencies might have been in the contemplation of the law makers, either that the general plan might be rejected, as it was, or the growth of the village might build up new streets in which sewers would be necessary.

In either case the petitioners would ask for what they wanted, and the board in its action thereon would be confined to the prayer of the petitioners, either to grant or refuse it, and would be without power or jurisdiction to do more than the petition requested.

Upon general principles the petition lies at the foundation of the proceedings and is the basis of the jurisdiction of the board.

Moreover, the language of the section plainly contemplates such restriction. The notice required is to be given to the owners of land fronting on such portion of the street as the petition describes, and the hearing is confined to persons interested in such portion of the sewer system, meaning, evidently, that portion described in the petition. Then again, if the board determines to construct such portion of the system of sewerage, it shall do so, meaning always, by the word such, the portion described in the petition.

Again, the statute requires a petition from the owners of land fronting upon the street through which a sewer has been projected, and the fair inference is that their ownership must be upon the street through which they desire the sewer to run.

Upon any other construction, the owners of five hundred feet upon any street might defeat the intention of the voters, and the board might construct sewers in any other street contrary to the wishes of the people, of their own volition, without request from any quarter.

In short, the board has no power or discretion to construct sewers of its own volition, and when it is set in motion it can proceed no further than its authority extends.

The last clause of § 8 applies only to the case of a petition for the construction of a sewer through different streets, and has no application to this case.

The question respecting the issuance of certificates to pay for this ■sewer is by no means free from difficulty.

The first part of § 10 of the original act reads as follows: “ For the providing of funds for the payment of the expenses authorized by this act, and for the construction and completion of such system of sewerage in any village, the board of sewer commissioners thereof is hereby authorized and empowered to issue its certificates of indebtedness or bonds, from time to time, and to pledge the faith and credit of said village for the payment of work, materials famished, lands taken and other expenses of said work.”

We think that provision was intended to apply only to the execution and completion of the general system of sewerage, which was rejected by this village, and that the expenses of constructing a sewer under a petition are to be collected under the following provision of § 8 of the amendatory act: “ If, after hearing had in accordance with such notice, the said board shall determine to construct such portion of said system of sewerage, the said board shall proceed to enter into contracts therefor in the manner prescribed by the sixth section of this act, and to apportion and assess the expenses thereof upon the property especially benefited thereby in like manner and with like effect as herein provided in the seventh section of this act.”

This view seems to harmonize with and give effect to the following language in the fore part of § 8: “To be paid for wholly by the owners of the lands specially benefited.” The language refers to the construction of the sewer prayed for in the petition, and the section plainly contemplates its incorporation into the petition for such construction, but it was not so incorporated in the petition in this case.

In this view, the issuance of certificates was unauthorized, and the proceedings of the board were irregular and unauthorized, and should be reversed.

Barnard, P. J., and Pratt, J., concur.


text:
    John G. Fay et al., Resp'ts, v. William G. Fay et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Judicial sale—Resale.
    An order directing a resale in partition was amended by striking out the clause subjecting the purchaser at the first sale, one of the plaintiffs, to liability for the deficiency on the resale. On such resale the referee either refused to receive a bid from said plaintiff, or to allow the money paid on the first sale to be applied on the cash payment required by the terms of sale. Held, that in either event the referee erred; that the sale was not a fair one, and that another sale should be ordered to enable the parties to bid on equal terms.
    Appeal from order vacating and setting aside certain sales in partition and directing a resale of the property.

      Herman Vogel (Norman A. Lawlor, of counsel), for app’lts; Wm. H. Pemberton and John McCrone, for resp’ts,
   Barnard, P. J.

On the 11th of June, 1892, certain premises in Westchester county were, under a sale in partition, struck off by the referee to John G. Fay, one of the plaintiffs, for $29,650. The purchaser paid ten per cent., and failed to complete the sale. An order for a resale was subsequently made, with a direction that the former purchaser pay any deficiency. On this resale the property was struck off to Henry A. Fay, one of the defendants, for $15,250. This sale was made on the 20th of October, 1892. Before the sale,on the 18th of September, 1892, the clause subjecting John G. Fay to the loss upon a resale, if any, was upon a written consent and stipulation between the attorneys stricken out of the order directing a resale. Upon this resale the plaintiff, John G. Fay, claimed to have made a bid, and that his bid was refused. This bid was one of $22,000 for the property. The papers show a serious discrepancy upon the fact Mr. Crone says he heard such a bid and its refusal. Others support him. The referee states that he refused to take an order on the ten per cent, paid in by John G. Fay on the first sale. In either case there should be a resale. If the referee refused to receive a bid from John G. Fay because of his default in completing the first sale made the sale should not stand. If the referee refused to accept the ten per cent., so far as the money in his hands belonging to John G. Fay would go, the sale should not stand. When the clause subjecting him to liability for a deficiency was stricken out, this ten per cent, was free, and belonged to John G. Fay. The order striking out the clause was a part of the case, and the referee was bound to accept it as such. There are many other facts stated in the case which have no relevancy except to bewilder the question decided. The first sale was confirmed, and not carried out by the purchaser. The order for a resale held the first purchaser liable for deficiency, and by an agreement between the attorneys an order was made striking out this clause. The first purchaser had paid $2,960 to the referee on the first sale, and upon the second sale, and after this order releasing him from liability, the referee refused to take any part of this $2,960 upon the ten per cent, to be paid on such second sale. This sale should not stand because it was not fair. One of the owners was deprived of his right to bid on equal terms with the defendant who purchased at the resale.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs; Dtkman, J., not sitting.


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    John G. Fay et al., Resp'ts, v. William G. Fay et al., Appl'ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Appeal from order denying motion for judgment of confirmation of report of sale of real property in partition.

      Herman Vogel (Norman A. Lawlor, of counsel), for app’lts; Wm. H. Pemberton and John McCrone, for resp’ts.
   Barnard, P. J.

The conclusion reached upon the appeal from the order granting a resale, renders unnecessary any examination in this case. The denial of the motion to vacate and overrule the exceptions to the referee’s second sale and for judgment upon such resale, must of necessity be upheld if the sale itself was irregular and unfair. It appeared in the other appeal that the referee either refused to receive a bid from one of the owners or refused to allow the money in his hands, as referee, belonging to John Gr. Fay, to be applied upon the ten per cent, cash payment required by the terms of the resale. It was just and fair to order a third sale so that the parties might bid on equal terms.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Dtkman, J., not sitting.


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    George Moore, Resp't, v. The Brooklyn Advertising Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Contract—Variation.
    A contract of employment to obtain advertising for three years specified the rates for the services very definitely and provided for a settlement every six months. In an action at the end of the term for an alleged balance claimed to be due, the defendant claimed that plaintiff had accepted in some cases a change of rules as between the rates and .in others had made special rates, which plaintiff denied, and on other points the parties varied, the plaintiff being sustained by the written contract and the defendant’s president by the two bookkeepers. Held, that a judgment in favor of plaintiff should not be disturbed; that the writing should be upheld when the variation of its terms is not fully proven.
    Appeal from judgment in favor of plaintiff, entered on report of a referee.
    Action to recover a balance alleged to be due the plaintiff as commissions for services in procuring advertising contracts for defendant.

      Gaynor, Grout & DeFere, for app'lt; Charles H. Otis, for resp't.
   Barnard, P. J.

On the 17th clay of August, 1888, the defendant entered into a written agreement with the plaintiff to employ him for three years in soliciting and obtaining advertising business for the defendant. The plaintiff was to give his entire and exclusive time and his best efforts to increase the defendant’s business. The rates for the services were fixed. Fifteen per cent was to be paid plaintiff for all business secured by the defendant which was closed by the plaintiff, and ten per cent on all business closed by outside agents. Fifty per cent of the commissions was to be left to cover defaulting or void contracts, but there was to be a settlement every six months. If $20,000 in advertising was not put in the first year, the defendant had the right to cancel the contract. The proof shows that the plaintiff continued in the employment for the three years ; and that $20,000 was put in the first year. The parties differed widely as to the facts. The plaintiff gave evidence tending to show that he was entitled to recover over and above payments the sum of $8,766. The items which were involved in the examination were very numerous and the same were scrutinized before the referee, item by item. The defendant pleaded payment and gave evidence tending to show that the dealings between the parties were all entered on a blotter and were settled at short intervals. That the plaintiff accepted in some cases a change of rules as between the ten and fifteen per cent in the contract; and in others made special rates different from those named in the contract. The plaintiff denied this wholly. He testified that the account was kept on a blotter, but that the contract as'to rates and as to what was due the plaintiff was a subject of contest and dispute from the very commencement until the end of the employment. The referee heard the oath of the plaintiff and the writing on one side and the testimony of the defendant’s president and of the two bookkeepers on the other. On these questions of fixing rates and of settlement, he has found for the plaintiff. There was a question whether the plaintiff was to be paid for business closed by one William Bogers. The plaintiff and the defendant were at variance as to the fact, and the referee has decided in favor of the plaintiff. There should be no reversal upon appeal from the findings of the referee upon questions of fact when the evidence is so strong in favor of the finding. The contract was sure in its terms. A variation requires strong prdof of the fact. The writing should be upheld when the variation of its terms is not fully proven. The plaintiff bad a second cause of action in his complaint. One "William P. Blinden, an agent of the defendant, obtained a contract from the Coster Medicine Company for advertising by defendant for five years, at the rate of $510. per year. The plaintiff is the assignee of this agent. Flinden was entitled to be paid ten per cent for procuring this contract, only a part of which had been paid. The findings include this balance as due the plaintiff under the assignment, being $102.

The case shows no revocable error committed upon the trial, and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    William Buchanan, Pl'ff, v. Noah Tebbetts, Def't.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Will—Power of sale—Suspension of alienation.
    By the will of a testator he gave all his estate to his three sons, who were his executors. The will also gave the executors power, in their discretion, at any time after one year, but not over two years, to sell certain land, and after deducting taxes and assessments, and any sum owing the estate by one M., to pay the balance of proceeds to said M. Held, that there was no suspension of the power of alienation; that the land descended to the heirs subject to the power of sale, and that a conveyance by the ex- . ecutors during the second year passed a good title.
    Submission of controversy without action.
    Defendant contracted to purchase certain land of plaintiff, but refused to accept the deed tendered, on the ground that the title was not good. The property came to plaintiff from one Walker, to whom it was conveyed by the executors of one Augustus Ivins, in pursuance of a power of sale contained in his will.
    Defendant claims that the power of sale was void, as unlawfully suspending the power of alienation, and that under the third clause of the will the title vested in said executors individually, so that the inchoate right of dower of their wives could not be cut off by a deed by them as executors.

      J. W. Peckett, Jr. (George R. Button, of counsel), for pl'ff; Noah Tebbetts, def't in person.
   Barnard, P. J.

By the will of Augustus Ivins, who died in October, 1885, he bequeathed all the rest and residue of his property to his three children. By the fourth clause of this will the executors were, at any time in their discretion “ after the lapse of one year, but not over two years, from the date of my death,” authorized to sell a parcel of land conveyed by Kalbfleisch & Conselyea to the testator. By this clause the executors were directed to deduct all taxes and assessments then due and the entire sum of money owing to testator by William T. Mills, and to pay the balance to William T. Mills. By the will the property would descend to the three children of testator if this limited power is void. If the power is good it would descend to them subject to the execution of the power. The power of sale was executed after one year, and within the two years after testator’s death. The power of sale is good. There was never for a moment a suspension of the power of alienation. The three children had the title subject to the povrer. The testator provided that the land should be sold for Mills’ benefit and for the benefit of the estate. There were always persons in being who could give a good title. A power of sale after a definite term does not necessarily create an illegal restraint upon alienation. Garvey v. McDevitt, 72 N. Y., 556.

The title which depends on the validitv of this power is good, and the defendant should take the title offered.

Judgment for plaintiff on submitted case.

Dykman and Pratt, JJ., concur.


author: Herrick, J.

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    George H. Richardson, App'lt, v. Jonathan Levi et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Sale—Acceptance.
    If one purchasing property without warranty is satisfied that when received by him it does not comply with the terms of sale, he must notify the vendor promptly and offer to return it; and if, after opportunity to ascertain defects in the property, he does not promptly notify the vendor or offer to return it, he will be deemed to have accepted it.
    2. Same.
    A complaining letter does not amount to a rejection or offer to return.
    3. Same—Notice.
    A delay of five days after receipt in giving notice held too long in case of perishable goods.
    4. Appeal—Justice’s court—New trial.
    Upon appeal from a justice’s court where a new trial was not asked for in the appellate court, the general term has no power on reversing the judgment to grant a new trial.
    Appeal from judgment of the Schenectady county court, affirming judgment of a justice’s court in favor of plaintiff for thirteen dollars, and setting the same off against the costs in that court, which were awarded to respondents.

      Robert J. Landon, for app’lt; Hastings & Schoolcraft (J. Teller Schoolcraft, of counsel), for resp’ts.
   Herrick, J.

The plaintiff commenced an action against the defendants in the justice’s court of Schenectady county to recover the purchase price of bananas sold by him to the defendants. The defendants admitted the sale and delivery of the bananas, but alleged that they were purchased by the defendants in pursuance of an agreement that the bananas were to be good and merchantable bananas when they were received by the defendants at Schenectady, N. Y. That when said defendants received said bananas at Schenectady, N. Y., they were not good, merchantable bananas, and defendants at once notified plaintiff, and then and there refused to accept the said bananas.

Upon the trial, the defendant who personally made the agreement testified that he called upon the plaintiff at his store in New York city, that the plaintiff showed him some bananas, and that he said: “I don’t like them; I want some half green and half ripe No. 2 bananas, in good condition when they reach me at Schenectady, and when they are received by me at Schenectady, if they are not good, merchantable bananas, they are yours and not mine.” “ He said they were seven shillings a bunch. They sent me twenty-four bunches. I received them on March 14th; they were sent on March 13th ; they were all rotten when they came ; we did the best we could and sold them for what we could ; the bananas were worth ten shillings a bunch here; there were twenty-four bunches ; they were worth five dollars ; we sold them because we could not send them back; I sent them a check for thirteen dollars, and they sent it back ; I sent the check because I did not want trouble. ” He furthermore testified, under the plaintiff’s objection, that he sold the bananas because they could not be kept and were in an over ripe condition. On the 19th of March the defendants sent the plaintiff a letter, of which the following is a copy:

“ Schenectady, 3, 19, ’90.
George H. Richardson, Esq.
Deab Sib—The bananas must have been heated too much, as they arrived in a very poor condition and are hardly saleable.
“Eesp.,
“ J. Levi & Co.”

The evidence here set forth presents substantially the defendants’ case. In the justice’s court a verdict was rendered in favor of the plaintiff for the sum of thirteen dollars, and from the judgment entered thereon the plaintiff appealed to the county court; the county court affirmed the judgment of the justice’s court; this, I think, was error.

The contract of sale was ah executory one. Reed v. Randall, 29 N. Y., 358-61; Coplay Iron Co. v. Pope, 108 id., 232; 13 St. Rep., 480. There was no warranty. The defendants’ only claim is, that they stated that the bananas were to be in good condition when they reached Schenectady; if they were not good, merchantable bananas, that they were to be the plaintiff’s and not the defendants’. See evidence, supra.

Tlfis language is no more than the law implies in all sales, and if the purchaser desires anything more than the law implies in every contract of sale he must specifically contract for it. Benjamin on Sales, 2d Ám. ed., § 600; Peck v. Armstrong, 38 Barb., 215; Reed v. Randall, 29 N. Y., 358-62; Gaylord Manufacturing Co. v. Allen, 53 id., 515; Dutchess Co. v. Harding, 49 id., 321; Gentilli v. Starace, 133 id., 140; 44 St. Rep., 60.

If one purchasing property without a warranty is satisfied that the property when received by him does not comply with the terms of sale, he must notify the vendor promptly and offer to return it, and if, after opportunity to ascertain any defects in the property, he does not promptly notify the vendor or offer to return it he will be deemed to have accepted the property. Reed v. Randall, 29 N. Y., 358-62-3; Delafield v. DeGrauw, 3 Keyes, 467; McCormick v. Sarson, 45 N. Y., 265; Gurney v. Atlantic & G. W. R. Co., 58 id., 358-64; Brown v. Foster, 108 id., 387; 13 St. Rep., 805; Fairbanks Co. v. Metzger, 118 N. Y., 260; 28 St. Rep., 775; Mason v. Smith, 130 N. Y., 474; 42 St. Rep., 365.

In this case, the defendants, after receiving the fruit, proceeded to exercise ownership over it by selling it. It is claimed that they gave notice to the plaintiff by the letter above set forth. The terms of the letter do not import a rejection or offer to return.

A complaining letter does not amount to a rejection or offer to return. Mason v. Smith, 130 N. Y., 480; 42 St. Rep., 365. But assuming it to have been intended as a notice of rejection, then it seems to me that it was not made in time. Such notice should be given promptly; and what would, perhaps, be considered a reasonable compliance with the rule' under some circumstances, would not under others.

Here the parties are dealing with a perishable article, fruit; the complaint is that it is over ripe; and yet the defendants say nothing in regard to it until they have had it five days; they receive it on the 14th, write the letter referred to on the 19th, which is received by the plaintiff on the 21st. This, Under the circumstances, was too long a delaj'-, and is very far from the promptness which the law requires from one seeking to disavow a purchase.

The question is presented as to whether this court has the power to grant a new trial. The case comes before us on an appeal from a judgment of the justice’s court, the appeal having been taken, in the first instance, from such court to the county court, and from the county court here. Appeals from justice’s courts are governed by articles 1, 2 and 3 of title 8, chapter 19 of the Code of Civil Procedure. Article 2 provides for appeals where a new trial is not had, and is not asked for, in the appellate court. Article 3 applies to appeals for a new trial in the appellate court.

.The appeal before us is one where a new trial is not asked for in the appellate court, and therefore comes under article 2. Section 3063 provides for the judgment which may be rendered on such appeal, it reads that “The appellate court must render judgment in accordance with the. justice of the case, without regard to technical errors or defects which do not affect the merits. It may affirm or reverse the judgment of. the justice in whole or in part, and as to any or all of the parties and for errors of law or of fact.”

This appears to me to be a limitation- upon the powers of the appellate court. The general term, it seems to me, has no more power in this respect than has the county court, to which appeals from justice’s judgments are taken in the first instance. If a county court upon appeal cannot grant a new trial, the general term, when a case comes to it from a county court, cannot do so.

Reliance is placed upon the case of Hathaway v. Fitchburg R. R. Co., 49 St. Rep., 466, as an authority that this court can grant a new trial. In that case no discussion of the question was had, as it was assumed without investigation that § 1317 of the Code authorized the court to grant a new trial, and that assumption was acquiesced in. Section 1317 is a part of chap. 12 of the Code of Civil Procedure, and applies to appeals taken from .courts of record, and it has been held has no application to appeals from the justices’ judgments. Ryan v. Parr, 40 St. Rep., 946; Bonnett v. Townsend, 43 id., 98.

It seems to me, therefore, that in the case of appeals that are not for a new trial from justice’s court judgments this court has no power to grant a new trial.

Let, therefore, the judgment herein be reversed, with costs.

Mayham, P. J., and Putítam, J., concur.


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    Julius Burgevin, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Carriers—Liability of railroad for loss of baggage.
    Plaintiff purchased a ticket on defendant’s road and had his trunk checked to another station, and asked the baggageman if it could remain at said station until morning, when he would call for it, and was told it was all right. The trunk arrived at said station in the evening and was burne I during the night. In an action for such loss the court held that defendant was not liable as a common carrier, but only as warehouseman, and submitted the case on the question of negligence. Held, that the holding was more favorable to defendant than the facts entitled it to, and it was not injured thereby or by the admission of evidence on the question of negligence; that it was liable as common carrier until the trunk reached the station and until plaintiff had a reasonable time to remove it, and that in case of baggage arriving in the evening a delay until morning is not unreasonable.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Ashbel Green (F. L. Westbrook, of counsel), for app’lt; D. M. De Witt, for resp’t.
   Herrick, J.

This is an appeal from a judgment rendered upon the verdict of .a jury in favor of the plaintiff, and against-the defendant, in an action to recover the value of a trunk, and its contents, charged to have been destroyed in a fire which occurred in defendant’s station located at West Park.

The plaintiff was intending to go to work- upon a place located a mile and a half or thereabouts from the railroad station at West Park. He purchased a ticket from New York city to Kingston; Kingston is about ten miles north of West Park. He purchased the' ticket for the train leaving New York at 4:15 in the afternoon ; he then went to the baggage-master and told him that he wanted his trunks checked to West Park ; that he was going to West Park; that he had no way of staying there over night; that he would like to leave the trunks over night if they would be all right. That be told him that he was going to Kingston, that he would be down on the first train in the morning, and the baggage-master said that that would be all right, that the plaintiff could come the next morning and get the trunks.

The plaintiff having two trunks, the baggage master weighed them, charging the plaintiff twenty-five cents for excess baggage, gave him a check and receipt for them.

The train was due at West Park about 6:41 in the evening;: the plaintiff took the train, his trunks were shipped, and left at West Park. The plaintiff went to Kingston, stayed there all night, returned to West Park next morning between six and seven o’clock, and found that there liad been afire at the depot and that one of his trunks had been destroyed.

The court held that the defendant was not liable as a common carrier, but simply as a warehouseman, and so only responsible to the plaintiff -for negligence in the discharge of its duty as a warehouseman, and it held that there was nothing to go to the jury except the question of negligence, and upon that issue the jury rendered a verdict against the defendant. I have not stated the facts or any of the evidence bearing upon the.question of negligence, because, from the view that I have taken of the .case, it is unnecessary to discuss that question.

The defendant was liable as a common carrier for the plaintiff’s baggage until it arrived at West Park, and until the plaintiff had a reasonable time to remove it. Roth v. Buffalo & State Line R. R. Co., 34 N. Y., 548; Burnell v. N. Y. C. R. R. Co., 45 id., 184.

As to what is a reasonable time, it was said in the Burnell case that it cannot be definitely determined, but must be left to the circumstances of each case. And, when there is no dispute as to the fact, what is such a reasonable time is a question of law for the court to decide. Hedges v. H. R. R. R. Co., 49 N. Y., 223.

In the Roth case, where, as was stated in Burnell v. N. Y. C. R. R. Co., 45 N. Y., 187: “ The rule of exemption from strict liability was carried to the utmost limit of propriety, to say the least of it,” the facts were as follows : “ The carrier transported the passenger and his trunk to the place of destination, and was ready to deliver it on arrival, but the passenger who accompanied it, and, therefore, had notice of its arrival, neglected to receive it, and left it in the carrier’s possession, not because it was unsafe or improper for him to take it, but because he preferred to leave it at the depot over night rather than carry it to his lodgings.” ' There was no agreement, understanding or permission by which the baggage was permitted to remain in the depot over night.

The court in announcing its decision stated that it was strictly in view of the special facts of the case, that the rules that it laid down were not intended to apply “ to the case of the baggage of a passenger who, with the knowledge and consent of the agents of the railroad company, stops at an intermediate station on the road over which he has contracted to be carried, intending to pursue his journey on a subsequent train, and left his baggage in the keeping of the carrier in the meantime.” Upon the undisputed facts in this case it seems to me, as matter of law, the responsibility of the defendant as a common carrier did not cease before the time of the fire.

The baggage had arrived at West Park between six and seven o’clock in the evening, and it seems to me that in the case of trunks arriving in the evening, a delay in calling for them until the next morning is not an unreasonable delay, and again in this case we have almost the identical facts suggested in the Roth case of the knowledge and consent of the agents of the railroad cpmpany (see 34 N. Y., 554) that the baggage should remain in the keeping of the carrier.

It seerps to me, therefore, that the holding of the trial court was more favorable to the defendant than the facts entitled it to,, and that it has not been injured thereby or by any of the rulings of the court upon the admission of evidence relative to the question of negligence, and that the judgment should be affirmed, with costs.

Mayham, P.'J., and Putnam, J7, concur.