author: Van Brunt, P. J.

text:
    Gilbert M. Husted, App’lt, v. Augustus Cruikshank, Trustee, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Legacy—Action to recover—Pleading.
    A complaint in an action to recover a legacy which alleges that in an action to construe the will it was adjudicated that plaintiff was entitled to one-eleventh of the estate, which share was of the value of upwards of $10,000; that defendant has since sold the remaining property and paid out large sums to others, but refuses to pay the plaintiff, does not state facts sufficient to constitute a cause of action at law, as it does not allege an accounting or determination of the amount of plaintiff’s proportional share.
    2. Same—Parties.
    Such complaint in an action brought solely against the trustee is defective as an equitable action by reason of defect of parties, as no binding determination of the amount of plaintiff’s share could be obtained without the presence of the other parties interested in the estate.
    Appeal from judgment sustaining demurrer to the complaint.

      A. E. Woodruff, for app'lt; A. Gruikshank, for resp’t.
   Van Brunt, P. J.

The complaint in this action, after averring the death of one Benjamin Lord, leaving a last will and testament, which was duly admitted to probate, and the appointment of the defendant as trustee of the estate, alleges that the defendant, as said trustee, commenced an action in this court for the construction of the will of said Lord; that the plaintiff appeared, and a judgment was entered by which it was finally adjudicated, among other things, that the plaintiff herein had a vested interest in and to a certain one-eleventh share in said estate, “ which said one-eleventh share or interest of this plaintiff was then of the value of upwards of over $10,000 to $15,000.”

The complaint further alleges, that since the rendition of the judgment by which the rights of this plaintiff and others were determined, the said trustee has sold the remaining real property belonging totlm estate, and out of the proceeds and other assets of the estate in his hands, first paid out large sums of money to others interested in and entitled to a share of the estate; but though the plaintiff has duly demanded the payment of said one-eleventh share or interest so belonging to, and by said judgment held to be vested in plaintiff, the defendant has neglected and refused, and still neglects and refuses, to pay the same.

The plaintiff thereupon demands judgment for the sum of $10,000, with interest, or for whatever other sum may be found to be the present value of said one-eleventh share of said estate, inclusive of said interest therein.

The defendant demurred to the complaint, upon the ground that the complaint does not state facts sufficient to constitute a cause of action; and that there is a defect of parties, in that the cestuis que trust of the estate of defendant’s testator, other than the plaintiff, are not-made parties to the action.

The court below held that, treated as a common-law action, the complaint does not state facts sufficient to constitute a cause of action, and, treated as an equity action, there was a defect of parties, and sustained the demurrer, and from the judgment thereupon entered this appeal is taken.

It is clear that the adjudication of the court below was correct.! There has been no accounting or determination showing the' amount of the proportional share of the estate which the plaintiff is entitled to receive, and until that has been done it is evident that no action at law can be maintained.

It is also apparent from the allegations in the complaint that, treated as an action for equitable relief, there is a defect of parties. It appears from the complaint that the plaintiff is only entitled to' an undivided one-eleventh share of said estate, which has never been apportioned, which has never been set aside and never determined. In the determination by an accounting of the amount of this share, the other parties who are interested in the estate are necessary parties, because no binding determination of the amount of this share can be obtained without their presence. ,

It is undoubtedly true, that to sustain a demurrer on the ground of defect of parties it must appear that the party demur-, ring has an interest in having such other parties made defendant, and that as a general rule the plaintiff may choose for himself what persons he will make defendants; and that before a defendant can sustain a demurrer on account of non-joinder of a defendant he must show that his interest requires that he should be made a party to the litigation. But in the case at bar, these facts appear upon the face of the complaint. It appears that there has been no accounting, that the amount of the share of this plaintiff in the estate has never been definitely ascertained, and that it will be necessary before a judgment can be rendered in his favor that the amount of such share should be ascertained; and before the amount of that share can be ascertained it is necessary that all the other parties interested in the estate should be before the court in order that there may be one accounting, a definite determination of all the interests of all the parties, and a decree entered which will be binding upon all those interested in the subject niatter. ■ .

There seems to be no principle, therefore, upon which a complaint of this kind can be sustained where objection is taken to its form.

The judgment should be affirmed, with costs.

Daniels, J., concurs.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    Philip D. Wheatland, Resp’ts, v. S. Morris Pryor et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1898.)

    Appeal—Reference.
    In an action by a stock broker against a firm for an amount claimed to be due for securities purchased and sold for it, moneys laid out by plaintiff and moneys received by defendants for his use, where it is claimed that a portion of the claim was for personal transactions of one of the members of the firm, and that plaintiff was indebted to the firm, and the evidence on those subjects was conflicting, the report of the referee in favor of plaintiff will not be disturbed on appeal.
    Appeal by the defendants from a judgment entered upon the report of a referee in favor of the plaintiff for $11,108.30.

      W. P. Tolies (G. C. Holt, of counsel), for app’lts; Billings & Cardozo (Michael H. Cardoza and Edgar J. Nathan, of counsel), for resp’ts.
   Lawrence, J.

In 1887 the plaintiff was engaged in buying and selling stocks in the city of Boston, and the defendants composing the firm of S. Morris Pryor & Co. were carrying on a similar business in Mew York. A contract was made between the parties on the 20th of October, 1887, under which the plaintiff was to transmit orders to the defendants. He was entitled to a share of the profits on such orders, and was to hold himself personally responsible for all orders of individuals transmitted by him; and agreed that the acceptance of all orders from firms should be subject to the approval of the defendants, and also to keep at least five per cent margin lodged with the defendants against all accounts opened with said defendants through or by him. The original agreement between the parties expired on the 30th September, 1888, and was continued to the 2d December, 1889, upon the same terms. It was customary for the defendants to render statements to the plaintiff monthly; these statements being rendered as of the close of each month and being received by the plaintiff about the 7th or 10th of the following month. In his amended complaint the plaintiff sets forth the agreement and alleges that on the 29th of June, 1889, the defendants were indebted to him in the sum of $11,000 for moneys which became due from them tg> him for securities purchased and sold by them for him, and for moneys laid out and expended by him for them, and for moneys received by them from and for his account under said agreement, no part of which has been paid and payment of which has been demanded.

The defendants, in their answer, while admitting the agreement between the parties, deny their indebtedness in the sum mentioned in the amended complaint or in any other sum; and they allege, by way of counterclaim, that on the 29th of June, 1889, the plaintiff became indebted to the defendants as copartners in the sum of $237.37.

It appears that on the 29th of June, 1889, the firm of Pryor & Co. was dissolved, and the referee finds that it is an admitted fact that there was due to the plaintiff from somebody the sum of $11,000, which remains unpaid.

Upon the trial before the referee much evidence was introduced and a number of witnesses examined, the attempt of the defendants being to show that certain drafts which had been .paid, by the plaintiff were not drawn on account of the firm transactions, but upon loans to the defendant Pryor personally, for which the firm is not responsible.

There was conflicting evidence in regard to these drafts, but the referee upon that evidence has found that, with the exception of certain loans made in December, 1888, all the disputed transactions were between the plaintiff and the firm, or for moneys paid by the former for the latter and not for the defendant Pryor personally.

Under these circumstances, upon well established principles, we see no reason for disturbing the report of the referee. See Roosa v. Smith, 17 Hun, 138; Clark v. Donaldson, 3 id., 224; Continental Bank v. Crosby, 1 N. Y. Supp., 256; 16 N. Y. State Rep., 216; Eighme v. Strong, 15 Civ. Pro., 119; 17 N. Y. State Rep., 126. There is certainly evidence which most strongly supports the finding of the referee; and the well considered opinion which he has rendered in the case shows that he has thoroughly examined that evidence.

The question involved here is one of fact, and in the language of the court in Roosa v. Smith, at p. 139: “We think it very clear that a general term cannot in a doubtful case, upon conflicting evidence like the one under review, assume the place of the referee, and determine from the mere reading of the evidence who has told the truth or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence giving such a decision as, in its judgment, upon the evidence is just.

Wé understand this court has the power to examine the evidence and the findings of fact in cases tried before the referee or the courts ; that it has the power, and it is its duty to interfere when facts have been found without evidence, or clearly against evidence. But we do not understand it can be called on in doubtful cases, upon conflicting evidence depending upon the character and credibility of witnesses, to review and.re-adjust the facts, upon the evidence as it shall appear to it on paper.”

We have examined the exceptions taken upon the trial by the defendants, and are of the opinion that none of them are well founded.

For these reasons we are of opinion that the judgment appealed from should be affirmed, with costs and disbursements to the respondent.

Yan Brunt, P. J and Daniels, J., concur.


text:
    Charles A. Dryer, Resp’t, v. John Shevalier, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Discontinuance—When court will set aside.
    Mrs. S., as administratrix of her husband’s estate recovered judgment against defendant in another state, and for the purpose of suing thereon without taking out letters here assigned it to plaintiff, who brought the action on being indemnified by her. He afterwards settled and discontinued the action on payment of a nominal sum. Held, that the court has inherent power to control all the proceedings in an action, and will not allow a manifest fraud to be perpetrated on another, even though that other is not a party to the record, and that the present was a proper case for the exercise of that power.
    Appeal from order vacating a settlement and discontinuance of the action.
    Clara Shevalier, as administratrix of her husband’s estate, appointed by the court in the state of Illinois, recovered a judgment in that state against this defendant, John Shevalier, for the sum of $1,639.65. John Shevalier is a resident of this state, and in order that she might sue upon such judgment in the courts of this state, without taking out ancillary letters here, she assigned it to this plaintiff, Charles A. Dryer, who commenced this action to recover upon the same.
    Dryer paid her nothing for the judgment, and as between himself and her, claims no interest in it. She gave him a bond indemnifying him against any costs and expenses incurred in this action, and he agreed to pay over to her all moneys by him collected thereon.
    The assignment, however, from her to this plaintiff is absolute on its face, and purports to transfer to him all her title, right and interest in such judgment, and the action is brought in his own name, and seeks to recover the amount of the judgment in his own right and for his own benefit. He does not bring it as trustee for her, but avers in the complaint that he is the lawful owner and holder of the same.
    The defendant answers in the action, setting up several alleged defenses thereto, and the issues joined were noticed for trial at the Cortland circuit.
    While the action was so pending, the plaintiff Dryer and the defendant, entered into a written agreement, under seal, settling the action, releasing and discharging the defendant from all liability thereon, and providing that an order of discontinuance be entered without costs to either party.
    A motion was then made, on behalf of the plaintiff Dryer and his attorney, and of Clara Shevalier, to vacate and set aside such settlement and stipulation, on the ground that plaintiff had no authority to make it, and that it was in fraud of all the moving parties.
    The following is the opinion at special term:
    Parker, J.—I cannot but be convinced, by the affidavits used in this motion, that no fraud was practiced by the defendant upon the plaintiff, in procuring the settlement and release in question. Neither was it the result of a mistake, or misunderstanding on the part of either. It was an arrangement deliberately entered into by both of them, whereby, for a trifling consideration paid to the plaintiff, the real owner of the judgment, Clara Shevalier, was defrauded out of the amount of it.
    But I am also convinced that the defendant knew of the equities which existed between plaintiff and his assignor. He evidently knew that the settlement made was a wicked betrayal of the plaintiff’s trust, and (if we assume that the judgment was a valid claim, as I think we must on this motion) a serious loss' and injury to his assignor.
    The plaintiff now seems to have repented of his conduct towards his assignor, and seeks to remedy the evil by a motion to vacate the whole settlement, and to be allowed to proceed with the action.
    If the plaintiff’s interests were alone to be considered, I could find no reason to grant the order, but it is so plain that his conduct has worked a great injury to Mrs. Shevalier, the defendant knowing and acquiescing in it, that I think he should be allowed an opportunity for repentance, and to carry out the arrangement which he made with her.
    The court has an inherent power to control all the proceedings in an action, and will not allow a manifest fraud to be perpetrated upon another, even though that other is not a party on the record. Lowber v. The Mayor, etc., 5 Abb. Pr., 487; Ferris v. Crawford, 2 Den., 595; Becker v. Lamont, 13 How. Pr., 23; Barry v. M. L. Ins. Co., 53 N. Y., 540.
    ' The principals referred to in the case first above cited seem to me sufficient reason for vacating this settlement, and allowing the plaintiff to proceed with this action.
    The defendant should, however, be put in the same position in which he was before the settlement was made. Whatever amount he paid to the plaintiff should be repaid to him, with interest. And no costs are allowed to either party upon this motion.
    An order may be entered vacating and setting aside the settlement and discontinuance, and allowing the plaintiff to proceed in this action, on condition that he repay to the defendant, within twenty days after the entry of this order, the whole amount that he received from the defendant as a consideration for the settlement, with interest thereon.

      Edmund O’ Conner, for app’lt; A. F. Smith, for resp’ts.
   Order affirmed, with ten dollars costs and disbursements on the opinion of Parker, J., at special term.

Hardest, P. J., Martin and Merwin, JJ., concur.


author: Dwight, P. J.

text:
    The Rochester Electric Light Co., App’lt, v. The Rochester Power Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Easement—Deed.
    A. owned lands south of B, and also one lying north of and interposed between B’s lots. On the last two lots A. had water power, which he desired to transmit to his lower lots, and he agreed with B., in consideration of a conveyance of ten feet of the intermediate lot, known as lot B, and of portion of the power, for a right to lay a line of shafting through B’s lots, and proceeded to do so. A deed was subsequently executed, by which A conveyed the ten feet of lot B and “ one-twentieth part of all the power from time to time created by the shaft running or to run through said lot B. * * a as now used, or as the same shall be owned and used by the parties of the first part,” etc., and B conveyed the right to pass the shaft over his lots, naming them, but not mentioning lotB. Held, that although lot B was not mentioned in the conveyance from B, the easement over the ten feet of said lot was reserved, either expressly or by necessary implication, by the deed.
    Appeal by plaintiff from a judgment entered on the findings and decision of the court at special term (Monroe, December, 1890).

      M. H. Coolce, for app’lt; D Hayes, for resp’t.
   Dwight, P. J.

In 1865, William H. Ward and James M. Whitney were severally the owners of several lots lying consecutively along the river front on the east bank of the Genesee river, at Rochester. Ward’s lots lay to the south of those of Whitney, except that one lot of the former (lot B) was interposed between two lots of the latter, and that one other of Ward’s lots (lot 16) lay north of all the lots of Whitney. On the lot last mentioned Ward had water power, which he desired to transmit to his lots on the south, and he agreed with Whitney for the right to lay a line of shafting for that purpose through all the lots of the latter, in consideration of which he was to convey to Whitney a strip of ten feet in width off from the north side of his lot “ B,” and was to grant to him the use of one-twentieth of all the power transmitted by the shaft. Under this arrangement, while yet resting in parol, and acting upon the advice as well as the consent of Whitney, Ward went on at great expense to construct and put in operation his line of shafting, traversing the entire series of lots of himself and Whitney, and the latter at once availed himself of the right to use one-twentieth of the power furnished thereby. In the following year (1866), the two parties and their wives, executed and delivered each to the other a mutual deed, drawn by Mr. Ward, who was not a lawyer, by which Ward and wife as parties of the first part conveyed to Whitney, by proper description, the ten feet of lot “B.,” above mentioned, and “Also the undivided one-twentieth part of all the power from time to time created by the shaft running or to run through said lot “B.,” and the water wheel connected therewith, as now owned and used, or as the same shall be owned and used by the parties of the first part, their heirs and assigns, with the right to the said James M. Whitney, his heirs and assigns to connect with said shaft, and to use said power to the extent aforesaid, in such manner and for such purposes as he, his heirs and assigns shall desire.” And by the same deed, Whitney and wife as parties of the second part conveyed to Ward and his heirs and assigns “ the right to pass over and through lots A., 18, 0. and D., of the Atwater and Andrews tract on Water street, in the city of Rochester aforesaid, a shaft or shafts, of suitable size and material to be used in connection with water or other power to propel machinery in or upon the premises of the said William H. Ward or Ward & Bro., now owned by him or them or which he or they may hereafter own on said Water street or vicinity or for any other purposes, provided that such shaft or shafts be so constructed, used and maintained, in the most approved manner, and so as not to unnecessarily interfere with the free use of said lots A., 18, C. and D., together with the privilege of entering upon said lots when necessary for the purpose of altering, repairing or renewing said shaft or shafts, doing no unnecessary damage.” The deed contained mutual covenants of warranty of all the premises and rights there severally con-veyed.

The lots A., 18, C. and D., specifically mentioned in the above grant of the easement from Whitney to Ward were all the lots, or parts of lots, then owned by the former which lay between Ward’s power on lot 16, and the property of the latter to which that power was to be conveyed. By this action the plaintiff, a grantee of Whitney, seeks to contest the right of the defendant, a grantee of Ward, to maintain the shaft across the strip of ten feet off the north side of lot B., conveyed by Ward to Whitney, by the same deed by which the easement for the shaft was conveyed by Whitney to Ward.

From the time when the shaft was laid, under the parol arrangement in 1865, it was maintained by Ward and his grantees, without interference or question on the part of Whitney or his grantees, until the year 1890. In that year the plaintiff, having occasion to rebuild its power house on lot 16, and desiring to renew its line of shafting which had been in use for twenty-five years, took up the old iron shaft and was about to lay one of steel in its place, when this action was commenced to restrain the defendant from laying the new shaft over the ten feet of land above mentioned.

We regard the contention of the plaintiff as utterly untenable.

The trial court made the following, among other findings, upon ample and mainly unquestioned evidence:

“ 5. That a shaft could not he constructed and operated from the water power on lot 16 over and across lots A, 18, C and D, unless the same was also constructed and operated across the whole of lot B, including that part which was conveyed to Whitney by the deed aforesaid as it existed when said deed was made.
“ 6. That it was the purpose and intention of said Ward and said Whitney at the time of making said deed of September 7, 1866, that said Ward should have the right to maintain and operate a shaft across that portion of lot B conveyed to Whitney, as he was then doing, and that without that right the said grant from Whitney to Ward would have been ineffectual.
“7. That said Ward in erecting said shaft and the machinery to produce the power to operate the same expended a large amount of money, and that said expenditure was made upon the suggestion of said Whitney and by his advice.
“ 10. That from the year 1865, when said parol arrangement was first made, as aforesaid, the said shaft was continuously maintained and used by said Ward, and his successors in the title to the said land, under a claim of right adversely to the rights of said Whitney, and his successors, the said Ward claiming said right under said parol arrangement and afterwards under said deed of September 7, 1866; that the right of said Ward to maintain and use said shaft, as so claimed, was conceded by said Whitney, and that the use of said shaft by said Ward was exclusive, uninterrupted, open, notorious, and with the knowledge of said Whitney, and his successors in title, until the month of September, 1890.”

Upon these findings and others which embrace the facts less formally stated in the opening of this opinion, we regard the following conclusions of law of the trial court as well based, and well supported by the authorities cited in the opinion at special term, viz.:

“ 1. That the grant by said Whitney to said Ward of the right to construct, maintain and operate the said shaft across lots A, 18, C and D, necessarily carried with it the right to construct, maintain and operate said shaft across the north ten feet of lot B, as an incident of said grant, and without which the same would have been ineffectual.
“ 2. That the said defendant has acquired by prescription the right to construct, operate and renew from time to time, the said shaft across the north ten feet of lot B, as the same had existed for twenty years.”

We are also inclined to go further, and hold that while the easement, contended for by the defendant over the ten feet of lot B, was not expressly included in the grant from Whitney to Ward in the deed between the parties, yet that it was expressly reserved in the grant from Ward to Whitney contained in the same deed. The omission of any reference to lot B in the grant from Whitney to Ward may well be accounted for by the fact that when the deed was drawn and executed, Whitney had no title to any portion of that lot, and that he acquired title to a portion of it only when the deed was afterwards delivered. But in the grant from Ward to Whitney we find these words: " Also the undivided one-twentieth, part of all the power from time to time created by the shaft running or to run through said lot B * * * as noio owned and tosed, or as the same shall be owned and used, by the parties of the first part, their heirs and assigns. ” Here was, at least, an express recognition in the mutual deed between the parties of the right of Ward and his successors in title, to maintain and operate the shaft as it then existed or as it might thereafter be altered or renewed, through lot B and the whole of such lot. If this may not be denominated an express reservation of the easement contended for by the defendant it certainly reserved that easement by necessary implication. In reaching that conclusion we are not confined to the force of the words alone employed in the clause of the deed just now under consideration. We have a right to consider in that connection the whole scope and purpose of the deed and the manifest intention of the parties in its execution. Case v. Dexter, 106 N. Y., 548, 553 ; 11 N. Y. State Rep., 162; Sanders v. Townshend, 89 N. Y, 623. So construed we can have no doubt that the true force and effect of the grant from Ward to Whitney was to reserve the easement for the shaft of the former in the ten feet of land conveyed to the latter.

The judgment appealed from adjudged that easement in the defendant, denied to the plaintiff the relief of an injunction against the exercise of that right, and enjoined the plaintiff from interference therewith. That judgment must be affirmed.

Judgment affirmed, with costs.

Macomber, J., concurs.


text:
    Cora Chase, Resp’t, v. The Jamestown Street Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Railroads—Negligence.
    The obligation of a carrier of passengers, to exercise the utmost diligence possible to secure the safe transportation of the passenger, and to that end to furnish carriages of the most approved construction and keep them in repair, applies as well to means and appliances for discharging passengers as for transporting them. If the wheel box or its guard is out of repair in such manner as to be liable to trip or throw down a passenger alighting from the car, that fact, of itself, constitutes negligence.
    2. Same.
    Plaintiff, while alighting from defendant’s open car, was thrown down and injured by her dress catching in the broken guard of a wheel box which projected from under the seat. She was following other passengers, and did not know of, or have suspicion of, this defect. Held, that it was not error to refuse to charge that it was contributory negligence, as matter of law, for plaintiff to fail to take hold of the arms at the end of the seats.
    3. Same—Evidence.
    In an action for such injuries, evidence of the defect at a time previous to the plaintiff’s accident, is competent to show defendant’s negligence in not remedying it, and evidence of previous accidents from the same cause is competent, to show the character of the defect.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial, made on the minutes of the court, at the Cattaraugus circuit, May, 1890.

      C. R. Lockwood, for app’lt; F. W. Stevens, for resp’t.
   Dwight, P. J.

The action was for a personal injury sustained by the plaintiff while a passenger on one of the cars of the defendant, caused, as alleged, by the negligence of the defendant in permitting the car to be out of repair.

The car was an open one with seats running across, and its floor extending over the wheels, which projected through the floor, and were guarded by sheet-iron boxes, or wheel houses, as they were called, located mainly under the seat, but which projected slightly into the passage between the two seats. These guards were furnished with a flange of sheet-iron, extending around the bottom, through which the screws passed which fastened them to the floor. The evidence tended to show that the flange on one of these boxes had become loosened and projected from under the seat an inch or two above the floor, presenting a sharp corner of sheet-iron liable to catch the skirts of ladies’ dresses as they passed. At the time of the accident, as the plaintiff was attempting to alight from the car, the skirt of her dress caught on the corner of the loosened flange and she was thrown forward onto the ground, and sustained the injury of which she complains.

The defendant was subject to the strict rule which fixes the liability of a carrier of passengers for hire, viz., that by its contract it is bound to use the utmost diligence possible to secure the safe transportation of the passenger; and to that end, to furnish carriages of the most approved construction, and to keep them in perfect repair, so far as human skill and foresight can provide. This obligation extends as well -to means and appliances for discharging passengers as for transporting them. So that if the wheel-box or guard in question was out of repair in such manner as to be liable to trip or throw down a passenger alighting from the car, that fact, of itself, constituted negligence which would, so far, charge the defendant. The evidence upon that question was quite sufficient to warrant the verdict of the jury. It was substantially admitted that the defect in question existed and that it was known to the person in charge of the car; and the resources of human skill and foresight had plainly not been exhausted in the effort to repair it. The proposition of counsel in a request to charge “that the measure of defendant’s duty was that of ordinary and reasonable care,” was opposed to the elementary rule of liability applicable to carriers of passengers for hire. Whether that defect was the cause of the accident described was also a question properly submitted to the jury, and their verdict in that respect was well supported by the evidence. It only remained to make a case of the absence of contributory negligence to entitle the plaintiff to a verdict; and in that respect, again, it is very clear that the court could not have withheld the case from the jury. The plaintiff was passing out, in the ordinary manner, through the passage between the seats, following other passengers who sat nearer the exit than she did, not knowing of or suspecting a trap in the floor of the car and not required to look for one, when her dress was caught and she was thrown forward in the manner described. The duty of the passenger to exercise ordinary and reasonable care for her own safety was well defined by the court to the jury, and the rule of non-liability of the defendant in case of the want of such care on the part of the plaintiff was correctly stated. It seems there were arms attached to the ends of the seats between which the passengers passed out of the car, and some evidence was given tending to show that she did not take hold of either of those arms. as she stepped down from the floor of the car to the step which ran beneath.

The evidence on this question was carefully and properly submitted to the jury, and they were instructed to say whether, in view of the whole situation as described, the plaintiff was guilty of negligence on her own part which contributed to produce the accident. This was all that the court was required to do. It properly declined to hold, as matter of law, and to charge the jury that a failure of the plaintiff to take hold of the arm of the "seat, was contributory negligence. The case, like most cases of this character, was one in which the inference of contributory negligence was to be drawn by the jury, if at all.

The motion for a nonsuit on the ground of the non-joinder of the plaintiff’s husband, was properly denied. The fact of coverture appeared on the face of the complaint, and the objection, if any, on that ground was waived because not raised by demurrer or answer. Code Civ. Pro., §§ 488, 499.

None of the defendant’s exceptions to rulings on questions of evidence were necessarily fatal to the verdict. The evidence given by several persons as to the existence of the defect in the car at a time prior to that of the plaintiff’s accident, was competent to show the negligence of the defendant in not taking effectual steps to remedy it; and the evidence of previous accidents from the same cause was competent as illustrating the character of the defect. Quinlan v. Utica, 74 N. Y., 603 ; Pomfrey v. Saratoga Springs, 104 id., 469 ; 5 N. Y. State Rep., 802 ; District of Columbia v. Armes, 107 U. S., 519.

The question of the defendant to Dr. Towle, a physician, whether the plaintiff’s mother was afflicted with cancer, was properly excluded, because it was not confined to personal knowledge of the witness acquired otherwise than when acting in a professional capacity; but the fact, if it was competent at all, was afterterwards established by other evidence, and was not disputed. The opinion of Drs. Towle and Fisher as to the probable effect of the plaintiff’s fall, was competent as that of medical experts. The testimony of a witness offered to prove a declaration of plaintiff’s witness, Mrs. Lawson, was properly excluded, because it did not tend to contradict any fact to which the witness, Mrs. Lawson, had testified, and which was material to the issues.

In short, without further particularizing, we find no exception in the case which points to error committed on the trial. We think the law of the case was properly expounded to the jury, and that the verdict was well supported by competent evidence.

The judgment and order appealed from must be affirmed.

Macomber, J., concurs.


author: Macomber, J.

text:
    Samuel Bryant, Adm’r, Resp’t, v. The Town of Randolph, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Negligence—Highways—Liability of town for defective.
    In making its crossing a railroad elevated a highway twelve feet in 1860. Plaintiff’s intestate, while descending the steep incline'with a heavy load, and while upon the railroad lands, was killed by the overturning of his wagon. Seld, that by adopting the highway so carried across the railroad track, working and attempting to improve the same, the town was liable to the same extent for injuries received there under the same conditions as it would be on other portions of the highway not owned by the railroad, and that the court properly submitted to the jury the questions whether the highway had not been an actually unsafe one from 1860, and whether the commissioner of highways by putting gravel thereon while making repairs had not increased the hazards of the situation.

      Appeal from a judgment entered on a verdict at the Cattaraugus circuit, February, 1890, and also from an order of the same court denying the defendant’s motion for a new trial.

      W. H. Henderson, for app'lt; F. W. Stevens, for resp’t.
   Macomber, J.

When this case was before us on the former appeal by the defendant, Bryant v. Town of Randolph, 24 N. Y. State Rep., 825, we granted a new trial upon what was deemed to be errors prejudicial to the defendant in the progress of the trial and in the charge of the court to the jury. The matters there discussed have no place in the present appeal, for upon the new trial which was had close adherence seems to have been given to the opinion of the general term.

The plaintiffs intestate was passing along a highway in the town of Randolph, near a point where the road is crossed by the Flew York, Pennsylvania and Ohio Railroad, but within the lines of the railway lands, and was there overturned and killed. This highway, it is shown, had existed for many years prior to the construction of the railroad, which was in 1860. The company carried the highway across its tracks at grade, but in doing so it elevated'the highway about twelve feet above its original and natural level. This caused a sharp incline in approaching the railroad from the north and south sides. The deceased was driving a span of horses attached to a wagon having a load of bark weighing two tons and three hundred pounds. There was a sharp bend or curve to the right while approaching the track from the south side, and a corresponding sharp turn to the left in descending and. in passing on to the village of Randolph. While descending the grade on the north side of the railroad and while yet upon the railroad lands at a point thirty or forty feet north of the tracks on a down grade of eighteen feet to the one hundred feet, the wagon was overturned to the left and the driver was killed.

The evidence on the last trial is in respect to the generally dangerous condition of the highway, not materially different from that which was before us on the former appeal. It was a dangerous spot for travelers with heavy loads. As was formerly held, there were two questions to be submitted to the jury, namely, whether the commissioner of highways of the town of Randolph had properly discharged his public duties in respect to this highway ; and, secondly, whether the deceased in passing along the highway had exercised a proper degree of care for his own safety. These questions have, on the trial now under consideration, been carefully and lucidly submitted to the jury, and a verdict has been granted that we are not able to distub. The learned justice submitted to the jury the question, first, whether the road was not an actually unsafe highway from the time of the construction of the railroad in 1860, down to the time of the injuries received by the plaintiff’s intestate in the year 1887. The other question so submitted to the jury was, whether or not the commissioner of highways, in making repairs in the year 1886, by putting gravel on the highway, had not actually increased the hazards of the situation. The general verdict rendered by the jury leaves it unde termined upon which ground they rested their judgment; but we think upon the evidence adduced upon this trial, whatever may have been our doubts in regard to the second proposition under the testimony disclosed on the first trial, the court was correct in laying before the jury both branches of the case.

We are not unmindful of the case of Post v. West Shore R. R. Co., 123 N. Y., 580; 34 N. Y. State Rep., 484, which is pressed upon our attention by the learned counsel for the appellant, in order to modify the views expressed upon the former appeal. We do not think that the case cited has any bearing upon the proposition. It was there simply held that a commissioner of highways of a town has no power to control the location of a railway within the line of a highway of the town, and that while for any failure of the railroad company in the performance of the duty of the restoration he is authorized to maintain an action for its performance, or for damages sustained by the town (chap. 255, Laws 1855), it is for the company, in the first instance, to determine the method of restoration, it taking the risk of its act being in accordance with its obligation, and the commissioner has no. power to dictate how the restoration shall be accomplished. This doctrine, in our judgment, is not in the least inconsistent with the proposition that the town of Bandolph, by adopting the highway so carried across the railway tracks, working and attempting to improve the same, was liable to the same extent for injuries received there under the same conditions, as it would be upon other portions of the highway not owned by the railroad company.

We have considered the other questions arising upon the trial raised by the elaborate brief of the appellant’s counsel, and do not find in them anything of which to predicate such error as would lead to a reversal of the judgment and a new trial.

It follows, therefore, that the judgment and order appealed from should be affirmed.

Dwight, P. J., concurs.


text:
    The People ex rel. The Union & Advertiser Co., Resp’t, v. The Board of Supervisors of Monroe County, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Supervisors—Designation of newspaper to publish session laws.-
    Relator’s newspaper was designated by a majority of the democratic members of the board of supervisors as one of the papers to publish tlie session laws. On the previous day a majority of said members designated another paper to publish said laws “ at an expense not to exceed twenty-five cents per folio.’’ Held, that the latter designation was void under Laws 1887, chap. 443, prescribing the sum to be paid for such publication, and that the designation of relator’s paper was valid.
    Appeal by the defendant from an order of the Monroe special term; entered February 18, 1891, directing a peremptory writ of mandamus to issue requiring the board of supervisors of Monroe county to audit and pay the relator’s claim for printing and publishing the session laws and notices of sale of lands for unpaid taxes for the year 1890.

      William F. Cogswell, for app’lt; Nathaniel Foote, for resp’t.
   Macomber, J.

The relator’s claim for printing and publishing the session laws'and notices of sale of lands for unpaid taxes for the year 1890 was properly presented to the board of supervisors of Monroe county, and by that body rejected. This proceeding calls upon the court for the high prerogative writ of mandamus compelling the defendant to pay the amount of the bill thus rendered, without putting the relator to an action at law therefor.

There is no question made of the fact that the relator actually printed and published the session laws and the notices of sale for unpaid taxes required by statute to be published in Monroe county; nor of the correctness of the bill rendered therefor. The only defense is that the defendant is not in any respect liable to the relator for the expense of such printing and publication.

Chap. 515, § 8 of the Laws of 1886, so far as it is material to the question involved in this appeal, is as follows: “ It shall be the duty of each board of supervisors in the several counties of this state, at their annual meeting, or at any special meeting called for the purpose, to appoint the printers for publishing the laws in their respective counties. The appointment shall be made in the following manner: the members of the board of supervisors representing respectively each of the two principal political parties into which the people of the county are divided, or a majority of the members of the board of supervisors representing respectively each of such political parties, shall designate, in writing, a paper fairly representing the political' party to which they respectively belong to, publish the laws, and such designation shall be signed by the members making it and filed with the clerk of the board of supervisors, and the two papers so designated shall publish the laws.”

Other statutes, not necessary to refer to in detail, make it incumbent upon the board of supervisors to designate the same newspapers, also, for publishing notices of sale of lands for unpaid taxes or for the redemption thereof.

In pursuance of this statute of 1886, a majority of the democratic members of the board of supervisors of Monroe county did, by a writing, signed on the 3d day of December, 1889, and filed with the clerk of the board on the following day, designate the relator as the paper to publish such laws and notices. That designation is as follows:

“ In compliance with the laws of the state of New York (chap. 515, Laws of 1886), we, the undersigned, constituting a majority of the democratic members of the board of supervisors of the county of Monroe, do hereby designate The Rochester Daily Union & Adertiser as the paper representing our political views to publish the session laws for 1890.”

This paper was signed, as is indicated upon its face, by a majority of the members of the board belonging to the democratic party.

Under this designation, it would follow, as a matter of course, that the bill presented for the services so performed to the county should have been audited and paid, unless such designation was insufficient, illegal, or unless there had been a previous designation by the same persons of some other newspaper to perform such services.

No question can be made but that the designation of the relator was in terms strictly in conformity to the provision of the statute quoted. Nor is there any question of fact presented but that the persons signing the same aid, in truth, constitute a majority of the members of the board who professed to belong to the democratic party.

The defense, however, is based upon the proof that on the 2nd day of December, 1889, one day before this action of the democratic members in behalf of the relator was had, the same body of persons had designated the Brockport Democrat to publish such laws and notices. It is true, that on the day last named, thirteen members of the board of supervisors made the following designation in writing, and the same was filed with the clerk of the board and adopted by the board itself in a subsequent meeting:

“ We, the democratic members of the board of supervisors, have selected the Brockport Democrat to publish the session laws, at an expense not to exceed twenty-five cents per folio.”

Very little need be said upon the subject of the power of the democratic members of the board to change their designation of a newspaper when once legally made. In my judgment they had no such power, where the certificate making the same' had once been filed with the clerk of the board and had been adopted by resolution of the board, as was done in this case. The body of persons to which is given the power to designate a newspaper for the purposes above named is not a legislative body in any respect. There is nothing in the statute which requires the members of either of the two political parties, in order to select a newspaper for publishing these laws, to act together as a body in consultation one with another over the subject; but each person may act independently, and if a majority of the whole number belonging to a given party concur in the selection of a newspaper for the publication, that paper becomes, by operation of the filing of the designation, the organ for publishing such laws and notices.

There is in evidence before us, a paper signed by the same majority of democratic members of the board, dated December 4, 1889, which declares that the orignnl action taken on the second day of that month, by which the Brockport Democrat was appointed, was done through misinformation of the members as to the political character and status of the last named newspaper; and further, “that they are now satisfied that the said Brockport Democrat does not meet the requirements of the statute, that it shall fairly represent the political party to which they belong; that the Rochester Union & Advertiser does so represent that party, and hence the reconsideration of the original action and subsequent designation of the paper to meet the requirements of the statute.” In the affidavit made by the clerk of the board of supervisors it is stated that this document was not filed with him as such clerk, though the affidavit of Mr. Balkam asserts that the same was made and filed. This difference, which has been made the subject of some comment by the learned counsel for the appellant, does not seem to me to be of any importance Undoubtedly Mr. Balkam, when this paper was prepared, understood that the same was to be left with the clerk of the board, and he had reason to believe that it had been so left; yet the clerk himself must be deemed absolutely to know whether given papers are on lile with him or not The redesignation of the Union & Advertiser would itself be a sufficient reconsideration of the previous appointment or designation. So that no writing of this kind was required to be made or filed.

The only importance, therefore, that can be attached to it is, that the persons constituting a majority of the democratic members' of the board were deceived and .misled in their previous action in thinking that the Brockport Democrat fairly represented the political party to which they belonged. The requirement of the statute is that the paper to be thus designated shall fairly represent the political party to which the members designating it belong. The question whether or not a given newspaper so represents the political faith of the persons designating it for the purpose of publishing the session laws, belongs rather to the persons themselves than to the court. Indeed, such is the peculiarity of the question that it is doubtful whether any court would undertake to review the determination of the members of the board of supervisors when once fairly and intelligently made upon that question.

It appears, however, that the Brockport Democrat is published in the village of Brockport, which contains a population of less than 5,000 persons, and that its circulation throughout the county is very small, and in the citj-- of Rochester, which contains 186,000 people, is hardly appreciable. That this newspaper has professed a democratic faith for the last three or four years is not questioned. But a belief in the doctrines of a party is not, as it seenis to me, conclusive evidence of the fair representation of that party when applied to a newspaper. Many other things must be taken into the account, such as its character, influence and circulation. There is nothing, it is true, in the statute that requires the selection of a paper having the largest circulation. Yet it is apparent that the influence of a paper, as ascertained by its circulation, must enter somewhat into the question, whether the same fairly represents one of the great parties.

A brief history of the laws relating to the matter of the publication of the statutes and of local notices goes far to show that it was the intention of the legislature to give the greatest publicity to such publication, and not to hide it in weekly papers of limited circulation. By chap. 280 of the Laws of 1845, §% provision was made for the publication in at least two newspapers in the counties of the state of these matters, and by § 2, the like publication of all laws of a local nature. By § 3 of the same act, the board of supervisors was required to appoint pr inters for publishing such laws in their respective counties, no supervisor being allowed to vote for more than one paper, thus intending to secure the publication in two papers representing the principal parties. The charge for such publication was fixed at the rate of ten cents for each folio, with a general limitation of an expenditure not exceeding fifty dollars to each paper. By chapter 215 of the Laws of 1870, § 3 was amended so to secure in fact, as well as in theory, the designation of two papers of opposite politics for such publication. By chapter 515 of the Laws of 1886, as quoted above, an important change was made as there indicated. This legislation at least seems to have secured, what the act of 1845 clearly contemplated, the designation of two papers of opposite political faith for publication of the session laws. Other changes have been made which it is not necessary here to note as not bearing upon the point to which this opinion comes. But by chapter 443 of the Laws of 1887, it was provided:

“ Sec. 6. The publishers of each of the papers so designated as aforesaid shall be entitled to receive for publication of the laws above specified a sum not exceeding fifty' cents nor less than twenty cents, for each folio, except in counties having a city of 50,000 inhabitants. In counties having a city of over 50,000 inhabitants by the last preceding census, the sum to be paid for such publication shall not be less than thirty cents or more than fifty cents for each folio. The specific rate' per folio to be paid in each county shall be fixed by the board of supervisors thereof within the limits above specified.”

In my judgment, under this law, the designation by the democratic members of the board of supervisors, of the Brockport Democrat to publish the session laws, was in violation of this statute, inasmuch as it contained an absolute condition that the expense thereof should not exceed twenty-five cents per folio; and that, consequently, such designation went for nought, and that the subsequent proper and lawful designation of the relator was legal and binding upon the board.

The object of this legislation is, as has already been intimated, to secure a publication which shall be a notice to the people interested in the subject matter of such laws, and in the redemption of lands from sales made under the taxing power of the state. As one of the measures of securing the widest publication, and the most complete information to citizens, the measure of the minimum of compensation was introduced, apparently, for the purpose of preventing, through notions of false economy, the selection, by the members of either of the two'political parties, of a paper which was not, by its character and influence, measured, at least in part, by its circulation, calculated to afford such information. The legislature must be presumed to have had intimate knowledge of the great pressure brought to bear upon individual members of the boards of supervisors, leading them, through a desire to avoid what to them would seem an unnecessary expenditure of money, to acts which were in fact subversive of the purpose of the statute requiring publication of laws and legal notices.

It was shown in the record before us that the proprietors of the Brockport Democrat in order to secure this publication, which they called “ patronage,” offered to publish the same for twenty-five cents a folio, being five cents less than the minimum fixed by statute. This bid so made to the supervisors was accepted and acted upon by them in a manner which they themselves apparently regreted the day thereafter.

The certificate so .designating the Brockport Democrat was directly in violation of the terms of the statute, which declared that the amount to be paid for the publication should not be less than thirty cents a folio, and that the rate to be paid for such publication must be fixed within those limits. Had the same gentlemen indicated by this document that the amount to be paid should be fifty-five cents per folio, being five cents above the maximum rate, the illegality of the designation would be apparent Can it be deemed any less illegal because it fixes a rate at five cents lower than the minimum ? I think not Because, as if to make absolute this provision, the duty is laid upon the board itself to fix the limit of compensation between the minimum and maximum price provided for by the statute. A gratuity of five cents more per folio than the law permits can hardly be deemed any less illegal, under the terms of this statute, than five cents per folio less than the minimum provided for by the same statute for publication.

A clear public policy is seen in this statute which is, that through notions of false economy an opportunity shall not be given to the members of either of the political parties to designate a paper that is not calculated to give publicity to, as well as the actual printing of, the laws and notices.

This law was established for a public reason, and, in my judgment, it cannot be contravened by this private agreement made in the ofier of the proprietors of the Brockport Democrat and the acceptance thereof with a condition as to compensation. The court, I think, has the right to assume, upon the facts developed in this case, that the gentlemen so designating that journal would not have designated it had not the offer to publish the proceedings been less than the minimum rate fixed by the statute. If this be so, the document carries within itself evidence of its own insufficiency and illegality, and should not be permitted to stand in the way of the designation, though subsequently made, of a journal that, as is conceded by both parties to this controversy, fairly represents one of the principal parties in the county. Privatorum conventio juri publico non derogat.

That the infraction of this statute was deliberate, admits of no doubt, for after the bid of the proprietors of the Brockport Democrat had been put in, the reading of this law was called for, and the same was thereupon read to the whole board by its clerk, whereby there was actually brought home to them the fact, with a knowledge of which they are presumptively charged by law, that their proposed action was in violation of the terms of the statute

While it is true that individuals may waive provisions of law prescribed for their advantage, and may gratuitously serve the public if they see fit, yet when private compacts in violation of the provisions of the statute are set up to defeat a claim made for services rendered in pursuance of law, the private compact must give way to considerations of public policy, as disclosed by the course of legislation.

In the case of the People ex rel. Bush v. Thornton, 25 Hun, 456, it appeared that in Sullivan county, where the salary of the county judge had been fixed for some years past at the sum of $2,500, the defendant, while a candidate for that post, advertised quite extensively that, if elected, he would fill the office for the sum of $1,200 a year, and would remit to the county $1,300 thereof. In his card or circular which he issued; the defendant there said: “I here repeat that, if elected to the office of county judge, I will pledge myself to take only $1,200 for my services; that I will pay out of my own pocket the coal necessary to heat my law office; that I will pay for all stationery and letter heads, and will see that those persons needing blanks shall pay for them themselves. If, by so doing, I have committed a criminal offense, let Judge Bush make the most of it, by lodging a complaint against me before the next grand jury. Has heaping on taxes become a virtue in this county, and an attempt to reduce them become a crime? Let the people answer.” But the court held that all votes cast for that candidate under the influence of such promise were illegal, and that in a proceeding in the nature of quo warranto against him, they should be rejected.

All contracts or agreements which have for their object anything which is repugnant or contrary to the provisions of the statute, are void. I Corny, on Cents., 4th Am. ed., 58 ; 1 Fonbl. Eq., b. 1, chap. 4, §§ 4, 5.

But, says the learned counsel for the appellant, this under-cutting of prices was done “with a commendable view to economy.” But, on the contrary, as was said by Judge Allen in Collender v. Dinsmore, 55 N. Y., 210, “ a contract does not depend upon its reasonableness for its validity,” and I may add to this that much less can it depend upon its economy for its validity.

The order appealed from should be affirmed, with costs.

Dwight, P. J., concurs.


author: Lewis, J.

text:
    The People ex rel. Thomas B. Cosford, App’lt, v. The Board of Supervisors of Niagara County, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Coboneks—Fees.
    A coroner is not entitled to compensation for the minutes of testimony-taken on an inquest. The taking of such minutes is included in his general duties, for which a per diem compensation is provided.
    2. Same—Mileage.
    It is doubtful whether the coroner is entitled to more than one traveling fee in going to and returning from the place of inquest.
    3. SAME—PoST-MOBTBM EXAMINATIONS A CHARGE AGAINST THE COUNTY.
    Physicians employed by the coroner have no claim upon him, but must look to the county for their pay.
    Appeal from order dismissing the proceeding and the alternative writ of mandamus theretofore granted.
   The facts appear fully in the opinion rendered at special term, as follows:

Lewis, J.

The relator, upon his affidavit, applied to the court at special term, for a peremptory writ of mandamus, and the court, after hearing the relator and the defendant, directed that an alternative writ issue, which was allowed and served upon the defendant, and the defendant filed his return thereto. The matter came on for a hearing at a special term, held at Lockport, and was heard upon the affidavit of the relator, and the affidavits and return of the defendant, and oral testimony.

It is provided by statute that the coroners in and for the state of New York, except in the counties of New York and Kings, shall be entitled to receive the following compensation for services performed:

Mileage to the place of inquest and return, ten cents per mile.
Summoning and attendance upon jury, three dollars.
Viewing body, five dollars.
Serving of subpoena, ten cents per mile traveled.
Swearing each witness, fifteen cents.
Drawing inquisition for jury to sign, one dollar.

Copying inquisition for record per folio, 25 cents; but such officer shall receive pay for one copy only; for each and every day and fractional parts thereof spent in taking inquisition, except for one day’s service, $8.00.

The relator as coroner of Niagara county, held two inquests ; one in and the other near Tonawanda, Niagara county. He presented an itemized bill in each case for his services and disburse-' ments. The items of the first bill were:

Viewing body............ $5' 00
Summoning Jury................................ 8 00
1 day taking inquisition..............;............ 8 00
12 folios for record............................... 8 00
4 witnesses sworn................................ 60
82 miles traveled.................................. 8 20
Inquisition for jury to' sign........................ 1 00
Statement to supervisors........................... 50
Aggregating................................. $24 30
In the other case:
Viewing body................................... 5 00
Summoning jury.......j......................... 8 00
4 days taking depositions.......................... 12 00
378 folios for record.............................. 94 50
23 witnesses sworn.....;.......................... 8 45
170 miles traveled................................ 17 00
Inquisition for jurors............................. 1 00
Statement for supervisors.......................... 50
1 telegram....................................... 25
Aggregating
$136 70

The contention here arises over the items in the first bill, “ 12 folios for record, $3.00; 82 miles traveled, $8.20;” and in the second bill, 378 folios for record, $94.50, and 170 miles traveled, $17.00

The board of supervisors refused to allow these items for the full amount, but did allow the relator the sum of two dollars for. making a copy of the inquisition, and for his services in reducing the testimony of the witnesses upon such inquest to writing, and for sixty-two miles traveled, $6.20; in the second bill they refuse to allow for the 378 folios for record, but did allow for reducing to writing the testimony of the witnesses, and for making copy of the inquisition, the sum of $14.50. The inquisition signed by the jurors did not in either case exceed two folios in length. The items “12 folios for record, $3.00,” and “378 folios for record, $94.50,” are for copies of the inquisitions signed by the jurors and for the minutes of the testimony taken upon the inquests. In the case of twelve folios, the corone]-, it appears, took the evidence himself; in the case of 378 folios, he employed a stenographer, who took the evidence in shorthand and wrote out his minutes at length. They were then filed; and one question for consideration here is, whether the coroner is entitled to compensation for the minutes of testimony. By § 778 of the Code of Criminal Procedure it is made the duty of the coroner to reduce to writing the testimony of witnesses examined before the jury in the case of inquests. A public officer upon whom a duty is expressly imposed by law must execute the same without fee or award, except when a fee or other compensation is expressly allowed by law. To entitle the relator, therefore, to compensation for his minutes of testimony it must appear that he is expressly allowmd pay therefor by law. The statute regulating the compensation of coroners has not provided for pay for the taking of minutes of evdence, unless it is covered by the subdivision “ copying inquisition for record per folio, 25 cents.”

It is contended by the counsel for the relator, that the minutes of evidence are a part of the inquisition. Section 777 of the Code of Criminal Procedure provides that the inquisition shall set forth who the person killed or wounded is, when and where and by what means he came to his death or was wounded, and, if he were killed or wounded, or his death is occasioned by the act of another by criminal means, who is guilty thereof, in so far as by such inquisition, they have been able to ascertain. It is not provided that the minutes of testimony shall form a part of the inquisition. . It is provided that the minutes of testimony shall be taken and. filed, for use, if needed in the prosecution of the persons suspected of the crime. The taking' of these minutes is a part of the labor imposed upon the coroner and must be held I think, to be included in his general duties for which a per diem compensation is provided. It is important that the public prosecutor and others who may be engaged in investigating the case should be informed as to the substance of the evidence of the witnesses upon the inquest. The legislature in fixing the duties of the coroner and his compensation, undoubtedly assumed that a person with, sufficient intelligence to discharge the duties of coroner, would he able without inconvenience, to take the minutes of the testimony, and did not provide for any extra compensation therefor. The subdivision of the statute under which the relator claims compensation for the evidence taken, provides that he shall receive twenty-five cents per folio. Had it been the intention that the coroner should receive extra compensation for his minutes, a much smaller compensation than twenty-five cents a folio would unquestionably have been fixed. While the services of a stenographer are useful and conduce to accuracy in the trial of causes, their minutes of testimony are necessarily voluminous, as they take both questions and answers and are not permitted to use discretion in curtailing testimony. Such elaborate minutes of evidence taken upon inquisition, are not needed; and in the absence of statutory authority so to do, coroners would not be justified in employing them, even if it should be held that they were entitled to compensation for minutes of testimony taken upon inquests. I am satisfied that the relator is not entitled to any compensation for the minutes of testimony, and that the supervisors would have been justified in rejecting such claim entirely.

The relator states in his affidavit, upon which the alternative writ of mandamus was allowed, that he necessarily traveled the distances mentioned in his bills in attending such inquests; but it appears from the return and affidavits of respondent, and it is not denied that the coroner resides but sixteen miles from. the place where the inquests were held, and the evidence presented fails to satisfy my mind that the relator is entitled for travel beyond the sums allowed him by the respondent. The statute provides for mileage to the place of inquest and return, ten cents per mile. It may well be doubted whether the coroner is entitled to more than one traveling fee in going to and returning from the place of inquest. The supervisors have allowed him for travel to and from the place of inquest twice.

As to the charges for the services of Drs. Palmer and, Eansom, for post mortem examinations, $20.00 each, the respondents after duly considering the matter, allowed the sum of $10.00 each. These services for post mortem examinations, are made by statute, a county charge. These claims of the doctors were against the county, and not against the coroner. Chapter 585 of the Laws 1874.

Van Hoevenbergh v. Hasbrouck, 45 Barb., 197, referrred to in the relator’s brief, was decided before the act of 1874 was passed, making the physician’s services in such case a charge against the county. The court in that case very properly held, that as the coroner was authorized to employ physicians for such services, in the absence of a statute making it a county charge, the coroner was justified in paying the bill, and the amount paid was a legitimate charge against the county. Since the act of 1874, he has the same power to employ, but the examiners have no claim upon him, but must look to the county for their pay.

The criticisms of the relator upon the verification of the return are not well taken. See § 2080 of the Code of Civil Procedure.

Wm. C. Greene, for app’lt; David Millar, for resp’t.

The return and affidavit of the defendants, I think, put in issue the allegations of the affidavit of the relator, so far as the questions in controversy are concerned.

These views lead to the dismissal of the alternative writ, but, as the questions involved in the proceeding are somewhat novel, no costs are allowed to either party.

Order affirmed, with costs, on opinion of Lewis, J., at special term.

Dwight, P. J., and Macomber, J., concur


text:
    Myra L. Spring, Ex’rx, Resp’t, v. The Chautauqua Mutual Life Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Appeal—Case.
    Where the case does not state jthat it contains all the evidence, the appellate court cannot look into the question whether the verdict is contrary to the evidence, even though there was a motion for a new trial.
    2. Benefit societies—Defense.
    A defendant company, in order to avail itself of a defense by which the policy of insurance should be forfeited by reason of untrue answers made • in the application, must set forth such defense so that it may be properly tried.
    3. Same—Charge.
    The court, after charging that any untrue answer in respect to matters set up as a defense would vitiate the policy, was asked to charge that “if the insured answered falsely any of the inquiries in said application as to the then or previous condition of his health, then by the terms of the contract itself the policy is void and the plaintiff cannot recover,” and answered “that is true, provided the inquiries were material and necessary.” Held, no error; that the request was too broad, and the answer of the judge in connection with the former charge was correct.
    Appeal from an order of the circuit held in Cattaraugus county, September, 1890, denying the defendant’s motion for a new trial, made on the minutes of the court.

      H. C. Kingsbury, for app’lt; A. Spring, for resp’t.
   Macomber, J.

The defendant, which is, by the answer, admitted to be a mutual insurance association, organized under chapter 175 of the Laws of 1883, did, on the 20th day of June, 1888, issue its policy or certificate of insurance to Levi T. Spring, the plaintiff’s intestate, in the sum of $4,000; $1,000 thereof being payable to his personal representatives, and $3,000 thereof to his wife.

This action was brought by the executrix to recover the sum of $1,000. On the trial the jury returned a verdict for the plaintiff, and from an order from the same court, denying the defendant’s motion for a new trial, this appeal is taken.

The defense is, that the insured answered untruthfully certain questions contained in his application, and that consequently no recovery can be had upon the policy, for the reason as is shown, that, by the terms of the contract, any incorrect or untrue answers would vitiate the policy.

The specifications contained in the answer, to which it is alleged the deceased gave incorrect answers, related to a habitual cough, spitting of blood, congestion of the lungs, disease or ailment of the heart, disease of the genital or urinary organs, unhealed ulcers or sores of any kind.

The argument of the learned counsel for the appellant is mainly addressed to the proposition, that the verdict of the jury was contrary to the evidence and to law, upon the facts proved, and that it was error on the part of the trial justice to submit the question to the jury whether any warranty, in respect to the matters above mentioned, was broken. The case, however, contains no statement that the whole of the evidence adduced upon the trial is returned to this court Under such a condition of things, we are not able to look into the question, even though there was a motion for a new trial, whether the verdict was contrary to the evidence and facts established. If there is any evidence to sustain the verdict upon any of the grounds of the defense set forth in the answer, we are obliged, in the absence of such statement, to assume that the jury arrived at a correct determination thereon.

The .plaintiffs testator died of valvular disease of the heart on the Slst day of August, 1889. It is claimed by the counsel for the appellant that the disease was upon the assured at the time of the making of the application, and that it had accompanied him for some time. There is evidence that in the year 1880 the deceased had been south, and that when he returned he was weak, pale and thin, and that it was necessary to have an escort to bring him home to Kansas City, his then residence. It is claimed that such disease was heart trouble of the character which finally carried him off, accompanied by weakness and disease of the lungs. On the other hand, there is evidence of a credible character which must have been believed by the jury, given by one of the doctors, to the effect that no heart disease had made its appearance in the deceased until after he went into the printing business in the month of August, 1888, about two months after he was insured.

Great reliance is placed by the appellant’s counsel upon the proposition that the deceased was troubled with rheumatism, and that consequently no recovery can be had in this action. An answer to that proposition is found in the fact that none of the defenses sets up any such matter. A defendant, in order to avail itself of the defense by which the policy of insurance should be forfeited by reason of untrue answers made in the application, must set forth such defenses so that they may be properly tried.

It is further contended that the answer to the question, “ Have you ever had spitting of blood?” was incorrect. There .was some evidence that at one time the deceased was found spitting blood, but the other evidence in the case shows that this was caused by his accidentally striking a tree which produced momentary or temporary hemorrhage.

It is further contended that the negative answer of the deceased to the question, " Have you ever had congestion of the lungs?” was untrue. But he had already answered that he had had pneumonia, and it is extremely doubtful whether this question was designed by the company or understood by the insured to relate to any other matter than that which had already been correctly answered unto. But the congestion of the lungs complained of was said to have occurred in the year 1880, many years before the pneumonia. One of the doctors testified that at that time the deceased was coughing and expectorating considerably and breathing rapidly, and that his lungs were congested. But it cannot be said from this testimony that he had congestion of the lungs within the meaning of that question, and the jury had, from the whole case, the right to say from the evidence before us, and from that which the law presumes was before them and not now before us, that the answer there given was not untrue. Boos v. World Mutual Life Ins. Co., 64 N. Y., 236.

It is claimed by counsel for the appellant, that the court fell into an error in its refusal to charge as requested. The court was asked to charge this proposition: “ If the insured answered falsely any of the inquiries in said application as to the then or previous condition of his health, then by the terms of the contract itself the policy is void and the plaintiff cannot recover.” The court answered: “That is true provided the inquiries were material and necessary,” to which an exception was taken.

The request to charge was, in our judgment, too broad. Many of the inquiries may have been falsely answered by the insured, and yet the plaintiff entitled to recover, provided the company did not defend upon the ground of such untrue answers. This remark of the learned judge must be considered in connection with the charge in chief, where it had been distinctly stated to the jury that any untrue answer in respect to the matters set up as a defense would, by the terms of the contrat vitiate the policy and discharge the defendant from liability.

Judgment and order appealed from should be affirmed.

Dwight P. J concurs.


text:
    In the Matter of the Application of Freeholders of the Town of Montezuma for Order Requiring the Repairing or Rebuilding of a Bridge known as Howland Bridge.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Highways—Bridges—Dedication.
    One H. built a bridge from land of his own across a river which divided two towns after acquiring a right of way from the owner on the opposite side. He afterwards conveyed a private roadway over his land leading to the bridge to a turnpike " company by deed containing a condition that it should revert when the company should cease to use its road thereon, and subsequently resumed possession thereof under such condition. In a proceeding for the repair of the bridge, Meld, that there was no dedication of the road as a highway, and that under chap. 639, Laws 1857, there was no liability to rebuild or repair as there was not a lawful highway in each town which would be connected by the bridge.
    I. Appeal by the petitioners, certain freeholders of the town of Montezuma, from an order entered in Cayuga county, on the 26th day of May, 1890, denying their application for the repairing or rebuilding of a bridge between the towns of Montezuma and Conquest; and,
    II. Appeal by the towns of Montezuma and Conquest from an order dated July 28, 1890, denying costs to them.

      James Wright, for petitioners; Charles M. Baker, for the Town of Conquest; J. W. O'Brien, for the Town of Montezuma.
   Macomber, J.

The towns of Conquest and Montezuma join each other in the county of Cayuga, the northerly line of Montezuma being the southerly line of Conquest, and are divided by a branch of the Seneca river. In the southwesterly part of the town of Conquest is an island, known as Howland’s Island, being oval shape, the longest diameter being north and south, containing 3,500 acres of land formed by two branches of the Seneca River, the general course of which is northwardly, the right branch running around the southerlv and easterly side of the island and dividing these towns, and tíre left branch running on the westerly side of this island and dividing the town of Conquest from the town of Savannah, in the county of Wayne, apart of the distance, and so around the northwesterly, northerly and northeasterly side of the island, where it meets and unites with the right branch. It has living upon it about twenty-five families.

This island was owned by Humphery Howland in 1825. Prior to April, 1834, he built a bridge over the south or east branch of Seneca River, at the site of the present Howland’s Island Bridge, which bridge was known as Howland’s bridge, and which was free to every one who wished to pass, until the same was taken possession of by the Port Byron & Savannah Turnpike Road and Brfdge Company, a corporation organized by chap. 318 of the Laws of 1845.

This company had the right to build a bridge across the south or east branch of the Seneca river, at or near the bridge of Humphery Howland, but so as not to interfere with the bridge without compensation to Howland, and also a bridge across the north or west branch of the river, together with a road across the island. Prior to this time, and in about the yenr 1832, Humphery How-land built a bridge on the site of the bridge in question, having obtained permission of one Cuykendall to make and use a road across the latter’s land from the south end of the bridge to the highway. Humphery Howland conveyed to the Turnpike Road & Bridge Company, a roadway from Howland’s bridge to the place where another bridge, known as the Galen bridge, had been built, by a deed containing a condition that the title should revert to Howland whenever the company should cease to maintain and use the turnpike road on such land. The roadway so conveyed included the part of a private highway running north from How-land’s bridge, which had been laid out by the highway officers of the town of Conquest. In the years 1855 and 1856 proceedings were instituted in this court which, under a judgment recovered against the Turnpike Road & Bridge Company, resulted in a sale of the entire property and franchises of that corporation, which were bov.glit in by William Penn Howland. Thereupon Humphery Howland took possession of the property mentioned in his deed to the company, whereby the same should revert to him in case of the non-use of the same by the corporation. William Penn Howland removed the old bridge and built a new one in its place in about the year 1867.

Upon these facts the learned referee, to whom the case was referred, has reported adversely to the prayer of the petition of the freeholders of the town of Montezuma, and such report has been confirmed by this court at special term, and from the order thereon one of these appeals is taken.

The application of the petitioners is made under chap. 639 of the Laws of 1857. As the learned referee has shown in his opinion, there can be no liability under that statute unless there is a lawful highway in each town, which highways are or would be connected by the bridge. Beckwith v. Whalen, 70 N. Y., 430. This, being a special statutory proceeding, can only be maintained in cases specifically authorized by the statute. Matter, etc., of Catt. Co., 59 N. Y., 316. The reasoning of the learned referee upon the question whether there is a highway on the Conquest side of this branch of the river seems to be so conclusive that we do not hesitate to adopt it. It is as follows:

“ I will, therefore, consider the question first, as to whether there is a highway on the Conquest side. The road on that side north of and connecting with the Howland Island bridge was not laid out as a highway, but as a private road, but after the Port Byron & Savannah Turnpike & Bridge Company acquired their rights in it and over it, and so long as they operated it, it became and was a public highway in the sense that all had the right to free and uninterrupted travel over it at all times, upon paying the requisite toll, but when the Turnpike & Bridge Company abandoned it, it reverted to its former condition, under the provisions of the deed from Humphery Howland to said company.

“I am, also, of the opinion, that under the facts the said road has not become a public highway under 1 R. S., 521, § 100, which provides that, ‘ all roads not recorded which have been or shall have been used as public highways for twenty. years or more, shall be deemed public highways,’ because this road has been recorded and recorded as a private road, and because of the interruptions to such uses which have prevented its use. Devenpeck v. Lambert, 44 Barb., 596; Shellhouse v. State, 9 West. Eep., 63 ; 110 Ind., 509. See, also, Speir v. New Utrecht, 49 Hun, 294; 17 N. Y. State Rep., 727.

“I am further of the opinion that the facts do not show a dedication of this road as a public highway, or an acceptance of it by the proper authorities, or by the public as a highway. The authorities are, that to constitute a dedication of a public highway, an intention to dedicate on the part of the owner must be clearly and unequivocally shown, and some are of the effect that an intention to accept must clearly appear. Fisk v. Havana, 88 Ill., 209. In New York it is held that the acts and declarations of the owner must be unmistakable in their purpose and decisive in their character, showing an intention to dedicate absolutely and irrevocably to the public use. N. F. S. B. Co. v. Bachman, 66 N. Y., 261. The authorities all hold that an intent to dedicate must be deliberate, decisive and unequivocal to effect a dedication. Speir v. New Utrecht, 49 Hun, 294, 298; 17 N. Y. State Rep., 727. And as bearing upon this I also refer to 1 R. S., 507, § 29, by which, ‘ it is made the duty of the highway commissioners to credit to such persons as live on private roads and work the same as much on account of their assessments as such commissioners may deem necessary to work such private roads; or annex such private roads to some of the highway districts.’ And it is also noticeable that none of the freeholders in Howland’s Island (who own the fee of the land over which the roads of the island run), are applicants in this matter.

“ I am therefore of the opinion, that this application should be denied, because there is no connective highway in the. town of Conquest, without considering whether the road in Montezuma is a highway, and I have, therefore, refused to make or pass upon certain findings in relation thereto, which were requested by the counsel for the applicants.

“ In my opinion, the practical discontinuance of the use of said branch of said river for purposes of navigation, “ the many acts of the legislature permitting the bridging of said river, including the act for the incorporation of the said turnpike & bridge company, are abandonment of the public right of navigation, notwithstanding the act passed in 1813, declaring it to be a public highway.”

It follows, therefore, that the ’ order on the merits of the case, -dismissing the petitioner’s application was correct, and should be .affirmed.

There remains, however, another question presented hy the appeals of these two towns, touching the matter of costs. Section 7 of chapter 639 of the Laws of 1857, is to the effect that the supreme court at special term, or a judge at chambers, shall have power to grant or refuse costs as upon a motion including also witnesses' fees, referee’s fees, and disbursements in proceedings of this character. '

The order made upon this subject was at another term .of court, where the matter was brought up upon affidavits in which an additional allowance of costs was asked by the successful parties, on the ground that the case was difficult and extraordinary. Ordinarily, where the discretion of the court or judge has been duly exercised, the appellate branch of the same court should not interfere therewith; but in this particular instance, we think that there could not have been brought to the attention of the learned justice at special term the fact that, at the first hearing before the referee, the parties stipulated that the referee’s fees should be fixed at a certain sum, and that they should be part of the costs of the proceedings, to be taxed as other costs, including the stenographer’s fees and referee’s fees. The case before us discloses no reason why costs should not have been allowed in this case.

The appeal, therefore, of the .town from the order of the special term must be upheld.

It follows, that the order denying the petioner’s application be affirmed, and that the order of the special term relating to costs be reversed, with separate bills of costs to the two towns appearing separately by attorney, together with the separate bills of costs of this appeal to such towns.

Dwight, P. J., concurs.