author: CULLEN, J. HATCH, J.

text:
    Wm. Fox, by Guardian, etc., Resp’t, v. Joseph Le Comte, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 11, 1896.)

    1. Master and servant—Appliances—Knowledge.
    It is not necessary that the master should personally have knowledge oí a defective appliance, where its repair is not a mere detail of the work, hut a part of the master’s duly in providing safe appliances.

      2. Same—Coservaht.
    Where such duty is committed to the machinist, he, in the discharge oí it, is not a coservant who represents the master, and for his neglect the 1 master is liable.
    S. Same.
    The evidence in this case was held not to show, as a matter of law, that the servant knew that the click of the press was a sign that the machine was out of order and, therefore, assumed the risk therefrom by reason of the plunger’s dropping without pressure being placed on the treadle.
    4. Appeal—Verdict.
    No verdict, that is based on the negation of a well known and accepted scientific fact of common knowledge, or on the existence of a physical impossibility, will he allowed to stand.
    Appeal from, a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Flamen B. Candler and Edgerton L. Winthrop, for app’lt; Charles J. Patterson, for resp’t
   CULLEN, J.

—This action is—servant against master—to recover damages for personal injuries. The plaintiff, a boy of sixteen years, was employed to work a power press which is set in motion by pressure of the foot upon a treadle. When the pressure is-removed, the punch should cometo rest. After working some two weeks in the factory, part of his thumb was cut off by the plunger or punch. The plaintiff’s claim was that the press was out of order, and the plunger moved without pressure being applied to the treadle. The defendant’s claim was that the press was nowise defective, but that the plaintiff carelessly let his foot fall on the treadle. Testimony was given to support the claims of the respective parties, both as to the facts of the accident, and also, of an expert nature, as to the operation of such machines. At the close of the case the defendant moved to dismiss the complaint, both on the contributory negligence of the plaintiff, and a failure to establish negligence on the part of the defendant. The exception to the refusal of the court to grant this motion, and the claim of the defendant that the verdict was against the evidence, present the only questions necessary to discuss on this appeal. .

It is charged that the plaintiff was negligent in two respects. The first is that he placed his thumb under the plunger, while be was instructed to take the disk between his finger and thumb when placing it on the die, by which only the soft parts of the fingers would be exposed. Plaintiff denies this instruction, and claims that his thumb was necessarily exposed. The jury saw the press operated at the trial and could determine whether its proper operation placed the thumb of the plaintiff in danger. The second claim is that the plaintiff knew of the defective character of the press, and, with that knowledge, continued to work on it. We think that this was not conclusively established, but was a question for the jury to determine. Doubtless, the plaintiff knew the press had been defective, but, according to his testimony, on his complaint the press was repaired by the machinist, whose duty it was to care for and repair the machines. Plaintiff was then told to go to work, and worked on the press for about an hour before the accident occurred.- By his statement, during all tin's period, the press continued to click. To charge him with negligence, it was not only necessary to show that he knew of me clicking, but also that he knew that the clicking imported that the machine was dangerous. Not only does plaintiff swear that -he did not know this fact, but it was a question most seriously litigated at the trial, the defendant's witnesses swearing that the clicking of the press did not indicate that it was defective or out of order.

As to the defendant’s negligence, it is undisputed that, if the plunger moved without pressure on the treadle, the press was defective. It was alleged that, though this was the case, the defendant had no knowledge of the fact. It was not necessary that the-defendant should personally have such knowledge. The repair of the press was not a mere detail of the work, as in Webber v. Piper, 109 N. Y. 496 ; 16 St. Rep. 423, but a part of the master’s-duty to use reasonable care to provide safe appliances for his servants. This duty was cdmipitted to the machinist, but, being the-master’s duty, the machinist, in the discharge of it, was not a co-servant, but represented the master. For his neglect the master was liable. Fuller v. Jewett, 80 N. Y. 46 ; Bush by v. N. Y., L. E. & W. Railroad Co., 107 id. 375 ; 12 St. Rep. 9. The present case cannot be distinguished from those of Haves v. Manufacturing Co., 41 Hun, 407 ; Van Sickel v. Ilsley 75 id. 537 ; 58 St. Rep. 731.

The court, hearing a constant repetition of the tale, in cases of accidents occurring in the use of these presses, that the press clicked, and then the punch came down without action by the operator, may be suspicious of the truth of some of these narratives. The question, however, is one of fact, for the jury, and the court is not justified in interfering, unless the verdict is manifestly against the evidence. Of course the court will allow no-verdict to stand that was based on the negation of a well-known- and accepted scientific fact of common knowledge, or on the existence of a physical impossibility. But the operation of these-presses is not a matter of common knowledge, and, if the move-' ment of the plunger without pressure on the treadle is an impossibility, it was incumbent upon the defendant to establish it. The defendant did not satisfy the jury of the fact, nor has he satisfied us.

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

BROWN, P. J., and BARTLETT, J., concur.

HATCH, J.

(dissenting). The theory upon which the action was brought is that defendant was guilty of negligence in placing plaintiff to work upon a defective, dangerous, and unsafe machine^ without knowledge upon his part of the defect, or means of discovering it, in consequence of which, r.nd without fault op his part, he was injured. The testimony adduced on the trial tended to support the theory, and the question now is, was it sufficient for that purpose? It may be conceded now that the jury were warranted, upon the evidence, in finding defendant guilty of negligence. That plaintiff was free from negligence contributing to the injury is not so clear. The testimony of plaintiff is far from satisfactory. It is alleged in the complaint that he was an infant less than fourteen years of age. It was conceded upon the trial that he was past sixteen when he entered defendant’s employ ; and he testified that he told Mr. Kelting, defendant’s foreman, that he was seventeen years old.- He also testified that he told Mr. Kelting that he understood about a press, and was a press hand. But in his testimony he says that he never worked on press work before he went in defendant’s employ. There are several other discrepancies in his testimony, not necessary here to point out. They are, however, entitled to weight in construing his statements, in view of the fact that it is upon his evidence that the verdict must stand, if at all. It must be assumed that he was possessed of a sufficient measure of understanding, and subject to the same responsibilities as an adult person. Tucker v. N. Y. C. & H. R. Railroad Co., 124 Y. N. 309 ; 36 St. Rep. 272.

Plaintiff, when he entered defendant’s employ, was required to-oil a press, for the purpose of testing his familiarity with it. This he satisfactorily performed, and was then set at work upon one. Upon this press and another he worked six or eight days, when he-was placed at work on the press where he received the injury. The motive power of all the presses was steam, and they were all operated by means of a treadle pressed downward with the foot. The press upon which the injury occurred is known as a “Ho. 18 Bliss Adjustable Power Press,” and was used in defendant’s factory for making tin safety caps for oil cans. The machine worked with a punch or plunger. There was a large fly or driving wheel on the right of the machine, connected with a shaft by a belt. Inside the hub of this wheel there passed an axle, and the driving wheel revolved around without moving it. The treadle was connected with a small latch, and when pressure was put upon it the latch was drawn away from a spring connected with the axle, and immediately four sections in the part of the axle inside the driving wheel became loosened, and dropped into a countersunk hole in the inside of the hub of the driving wheel, into which the sections fit, locking the wheel to the axle, and communicating motion to the plunger. These movable sections are called “clutch bolts,” and, as they wear, they protrude from the surface of the axle, the extent of the protrusion depending upon the extent of the wear. This protrusion of the clutch brings it in contact with the edge of the countersunk hole, and producás a clicking noise as the wheel revolves. It is claimed that the clicking indicates that the machine is wearing and is defective. .A cut of the machine accompanies the record, and conveys more vivid knowledge of the machine’s character. This description is sufficient for our present purpose. In the performance of his work, plaintiff was required to place the cap upon top oí a stationary die underneath the plunger, press his foot upon the treadle, which caused the plunger to . descend, coming in contact with the cap upon the die, and pressing the pieces of tin together. The plunger was hollow for a space, and, -when down, inclosed the die to its shoulder. Plaintiff testifies that, when he was set at work on this machine, he was instructed by the foreman to so place the caps that his fingers would come dircetly between tiie plunger and tlie die, and that he knew no other way of doing it. This was denied by defendant, who claimed'that he was instructed to place the caps" on with his thumb and finger, in such manner as not to bring any part of his hand between the die and the plunger. It is clearly apparent that whatever the instruction, or with none, the caps could be easily placed in position in such manner as not to bring any portion of the hand between the plunger and. the die. And it is equally clear, with or without instruction, that, if the hand were placed -upon the die when the plunger descended, its effect would be to crush the hand. That injury would result from such act is as ■clear as placing the hand between moving rollers, or on a running ■saw. Plaintiff testifies: That he was set at work on the machine -on Thursday. That he noticed a clicking sound continually during that day, On Friday the machine clicked, and the plunger came down two or three times without his foot being on the treadle, or his doing anything to set it in motion. He then applied to the foreman, stating that he was afraid of that press,— afraid of losing his finger. “He asked me what was the matter with it, and I brought him over and showed it to him. I told him the punch was going up and down without my foot on the treadle.” The foreman said he would fix it, hammered about it, and directed plaintiff to oil it up, which he did. When started, it clicked the ■same qs ever. Plaintiff says,, in this connection: “I didn’t know the clicking meant any harm. It was never explained to me.” ■On Saturday, in the morning, the punch came down five or six times, but plaintiff said nothing. In the afternoon, after it had come down, he again applied to the foreman, and told him “that I was afraid of it; that it was going up and down—the punch was ■ going up and down—without my foot; without pressure on the treadle. The foreman worked on it five or ten minutes, and, at the end of that time,' told me it was all right,—to go on and work on it. The clicking still kept up. It came down, and took my finger off. It had not come down in the meantime, after he had worked at it, until it crushed my finger.” On his cross-examination he testifiéd that he had seen the punch go up and down five or six times without his foot on the treadle, before he went to Kelting. Then he went to him and said, “The machine is clicking, and the punch goes up and down without my foot on the treadle, and I. am afraid I will lose my finger.” And again he says, after he hammered it: “I saw the punch continue to go up and down, without my foot on the treadle, five or six times, and -still clicked as bad. * * * On SaturdayT worked, and still saw it come up and down,—heard it clicking, and "the punch coming up and, down without my foot being on the treadle,—and I continued to work on it. Q. You knew it might take your thumb off? A. Yes— No; I did not know whether it would or not. I was afraid it would, but I did not know it would.” Upon this testimony, the claim of the plaintiff is that he had the assurance of Kelting that the machine was all right, and had the right to rely thereon,—that he could go on in safety; that he had no knowledge that the clicking'was indicative of danger; and that he had been instructed, when putting on the caps, to place his hand between the die and the punch. I do not think this claim can be sustained. As we have seen, his age was no shelter from obligation. Nor do I think that his statement 'that the clicking conveyed no warning to him can be accepted, when taken in connection with his whole testimony. When he first speaks of the machine, lie notes the clicking, which was not present in the other machines he had worked on, and which were operated in practically the same manner. He knew from the first that the clicking preceded the fall of the punch. His statement to Kelting was, “The machine is clicking, and the punch goes up qnd down,” Here he clearly associates the clicking with the fall. He had had two and a half days’ experience with it. His attention was specifically called to the fact that the downfall of the punch followed the click of the machine. He was- early apprised of the danger he had encountered, and understood it, for he said so. At no time does he disassociate the clicking with the' action of the punch, except when he says that he did not know what the clicking meant. It is not clear from that statement that he referred to the occasion of the clicking after Friday forenoon. It might well be that he had no notice of what the clicking indicated prior to the antomatic falling of the punch. But, when the clicking was followed so continuously by the falling, it necessarily indicated that there was some connection between the two; and prior to his injury on Saturday he does not say that at that time he did not know what the clicking indicated. It is evident that this view was shared by the learned trial judge, for upon the motion for a nonsuit he seems to have denied it upon the ground that there was no evidence that the machine clicked after Kelting last hammered at it before the injury. In this the learned judge was clearly error, for plaintiff’s testimony is that it commenced clicking as soon as the wheel started. This error, however, was not corrected by counsel. It is important here as showing that upon the trial it was assumed by the court that the clicking was notice of the defect, and that plaintiff at the time of which the court was speaking, so understood it. Upon the testimony, I think plaintiff,was chargeable with notice that the clicking indicated the defect, and what was likely to happen therefrom. If this assumption be true, then, as he voluntarily continued at work upon the machine, he must be held, to have assumed the risk of its operation. Crown v. Orr, 140 N. Y. 450 ; 55 St. Rep. 834. Nor do I think that the assurance by Kelting changes this rule. He had fixed the machine on Friday, but the clicking continued, and the punch came down. When he again hammered • it, on Saturday, its operation was the same as before. The clicking followed the revolutions of the wheel. Under the same conditions, he knew how it had operated before, — that it meant danger,—in consequence of which the assurance was contradicted by .the warning of the machine. But, aside from this, I think he was guilty of negligence which contributed to the injury. The illustration with the punch and die, given upon the oral argument of the case, showed that it was an entirely unnecessary act to place any part of the hand between the punch and the die. It was apparent that the small piece of tin could be held between the thumb and finger, and placed upon the die, and that part of the hand necessary to the operation, -as well as the whole hand, would then be unaffected by the-descent of the punch, or,-at the most, could only slightly injure it in the fleshy part. If the punch had never fallen without human agency, the placing of the hand between the punch and the die before placing the foot on the treadle could not be said tobe negligence, as matter of law. But when it is coupled, as it is here, with knowledge of the fact that . x the punch was likely to come down at any time without human agency, then the act of bringing the hand into such a position, I think, was a negligent act; for, as .has been observed, the danger was so apparent that no amount of instruction could make it more vivid and plain, and we are not left in doubt of plaintiff’s mental condition, for he says he was afraid of it. Nothing in Van Sickel v. Ilsley, 75 Hun, 537; 58 St. Rep. 731, confli cts with this view, It does not appear, from the report of that case, that plaintiff had any notice whatever that the machine was defective. In view of the very serious conflict of the evidence as to the cause of this accident, and the conviction that plaintiff- was chargeable with notice of the detect, assuming it existed, I think the judgment appealed from should be reversed, and a new trial ordered; costs to abide the event.

PRATT, J., concurs.


source: Caselaw Access Project

author: HATCH, J.

license: Public Domain

text:
    Frank Irvine, by Guardian, etc., Resp’t, v. F. H. Palmer Manufacturing Company, App’lt.

      (-Supreme Court, Appellate Division, Second Department,

      Filed Feb. 11, 1896.)

    1. Master and servant—Negligence. p
    Where the master, in the first instance, furnishes a perfect machine, a recovery, if it is to be sustained, must be upon the ground that he is guilty of culpable negligence in failing to keep the machine in proper repair.
    3. Same.
    The master was held, in this case, to have fairly met the case made by the servant ahd to have established facts which do not warrant the inference of negligence in the respects claimed.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    William C. Beecher, for app’lt; Charles J. Patterson, for resp’t.
   HATCH, J.

—This case differs from the Fox Case (decided at the present term), 37 N.Y. Supp. 316. In that case the question arose upon the assumption of risk, and contributing negligence of plaintiff. ' Here the question arises upon the negligence of the defendant. The machine is in all respects similar to the machine m the Fox Case, except that it is larger. It is operated in the same manner, and the injuries were received in substantially the same way, and, as is claimed, from the same cause. It is claimed by plaintiff that the machine is defective; that it clicked while in operation, which indicated the defect; that lie had called the attention of the machinist, whose duty it was to repair the machines, to the fact of its clicking; that the machinist had tightened it up, and told him to go on and use it. Plaintiff was employed on the machine three days. He testified that on the second day the punch came down without pressure on the treadle. On the next day, in the morning, it came down about an inch without pressure on the treadle, and on the afternoon of this day it came down in like manner, without pressure, and inflicted the injury. He is supported by the testimony of one witness respecting the fall of the punch on the second day. There is no controversy over the fact that the master, in the first instance, discharged his full duty, by furnishing a perfect machine; and, if the recovery is to be sustained, it must be upon the ground that defendant is guilty of culpable negligence, in failing to keep the machiue in proper repair. The testimony of plaintiff and his witnesses was contradicted upon every material point in the case, both as regards the clicking, as a fact and as evidence of a defect, and also as to any defect in the the machine in fact. If this testimony rested simply upon the oral statements of the witnesses, there would be little, if any, doubt that a case was made for a jury. But defendant went further. It is established that the machine had been in use but about a year; that six months prior to the injury the manufacturer of the machine examined it, and found it at the time in a safe condition. Just prior to the trial he again examined it, and found nothing defective. Defendant produced the parts of the machine claimed to be defective, in court, together with a model which showed clearly its mechanism and principal of operation, and the same were exhibited to the court and jury. The,inspector of the manufacturer of the machine was called as a witness, and explained its mechanical construction and principal of operation. • Ho discredit was cast upon this witness, nor are his statements substantially contradicted. From the principal of its construction and operation, it is clear that the punch could not fall a part of the way, and then return to its place. Once the clutch locks the axle to the wheel, the motion must be continuous up and down until it is released, either by throwing the clutch out of position or, shutting off the motive power. Ho partial automatic motion of the machine could take place. The parts of the machine produced were, in and of themselves, perfect. There was no break, and nothing about them suggested that they were not in the same condition as when first applied to the machine, except a slight wear upon the clutch; but that this did not indicate a defect, or subject its operation to any change tending to make it automatic in movement. The appearance of the parts, the character of construction, and the principal of operation of the machine, all tended to the corroboration of the witness. He was also corroborated by the testimony of Clark, a machinist in defendant’s employ, and by Roesrer, a machinist who had formerly been in his employ. It. was further shown, by persons who had operated the machine before and after the injury to plaintiff, that no difficulty had ever been experienced with it, but- that it worked as it was expected, and had been in continual use, without' repair, since the injury, and since it, was first placed in defendant’s factory. I am of opinion that this proof must be accepted as sufficiently cogent to "overthrow the case made by plaintiff. Its effect is to establish, by a practical demonstration of mechanical construction and principle of operation, that the punch could not fall in the manner described by automatic action. With this demonstrated the statements of witnesses in contravention thereof must be disregarded; otherwise, oral statements must be held to have more force than the certain action of immutable laws. I have not overlooked, if I have not adverted to, the testimony of William Burke, an. expert witness called by plaintiff. He was;formerly in the employ of the manufacturer of the machines, and left such employ about eight years ago. He states that the clicking of the machine is caused by the wear down inside of the pulley, and that the clicking indicated that the mandrel or punch is likely to come down without pressure on the treadle: that the wear causes loss of motion. He assigns four specific reasons why the punch is liable to fall: hirst, by the breaking or wearing off the upper edge of the latch; second, by breaking off or wearing off the upper surface of the clutch: third, if the hole in the driving wheel is worn too large; fourth, if the wear and tear of the machine are such that the set screws get slack, it will cause a vibration and a lateral motion, and let the punch down of its own weight. It is evident from this testimony that very much of it relates to possibities, and has no practical bearing upon the real issue of the case. There was no evidence whatever that any of the conditions existed which he assigns in his third and fourth reasons. As to the first and second, there was no evidence of any breaking. Indeed, the evidence was that it- was not broken. It therefore comes to the proposition, was there any evidence of a wearing of either latch or clutch sufficient to cause ah automatic fall? Upon this point he was finally recalled," and says that the bar was worn from coming in contact with the clutch. This is the first time that any person had spoken of the wearing of the bar. Prior to this, it was the clutch or latch that wore. And, as his final statement, he gives it as his opinion that, because the bar was not worn uniformly, it accounts for the click, and constitutes a defect. The evidence finally leaves the case to stand upon the question, of the wear on one side of this bar as sufficient to carry the case to the jury. I think it insufficient, in view of the other testimony in the case. It is not a fact . that is here testified to, but simply an opinion. The instrument is produced, and all the witnesses who were called to speak upon the subject made no. mention of it as constituting a defect. Burke himself made no mention of it when first called, and the piece is produced for the court’s inspection, and shows scarcely a • perceptible wedr. Giving it full force, it amounts to no more than a scintilla of proof, which has long since been disregarded by the courts. I think, as matter of law, that defendant has fairly met the case of plaintiff, and established facts which do not warrant the inference of negligence in the respects claimed. Nothing in Van Sickel v. Ilsley, 75 Hun, 538; 58 St. Rep. 731, and Hayes v. Manufacturing Co., 41 Hun, 407, conflicts with this conclusion. The first was decided upon conflicting testimony. The second involved a disobedience of rules, and contributory negligence.

It follows that the judgment and order appealed from should, be reversed, and a new trial ordered; costs to abide the event.

All concur.


author: O’BRIEN, J.

text:
    Cornelius Beecher, Pl’ff, v. John Schubach et al., Resp’ts. Herman Kertscher et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Mechanic's lien—Performance.
    Where, in an action by a subcontractor to enforce a mechanic’s lien, the complaint alleges a performance of the contract by the contractor, it is proper, in the absence of an amendment to the complaint, to exclude evidence to show a substantial performance, consisting of a completioyby the owner according to a provision in the building contract, providing therefor on failure of the contractor so to do.
    , 8. Same—Burden of proof.
    In such case, the burden of proof is not upon the owner to show a completion according to the specifications, and the cost thereof.
    Appeal from á judgment in favor of defendant Schuback.
    On the 6th day of February, 1889, the defendant John Sehubaclc entered into a contract with Barron & Barron for the building of two houses on two lots of land at the corner of Ninth avenue and Eighty-Ninth street, for the price of $43.000, to be paid by seven installments; six at different stages in the erection of the building, and the seventh, $13,000, on its completion. The contract contained a provision that the work was to be done in accordance with the plans and specifications, to the satisfaction and under the direction of the architect, to be testified to by his certificate, and that the payments aforesaid were to be made upon the certificate of the architect that the materials supplied and the labor performed were in accordance with the contract and specifications. The contract contained the further provision that should the contractor, at any time during the progress of the - work, refuse or neglect to supply a sufficiency of materials or workmen, the owner should have the power to provide materials and workmen, after three days’ notice in writing being given, to finish the work, and the expense should be deducted from th& amount of the contract. The contractors, Barron & Barron, pro cccded with the erection of the buildings until the 8th day of October, 1889 ; and the defendant Schuback, from time to time, made the payments called for by the contract, but, up to the fifth payment, without requiring the architect’s certificate mentioned in the contract. The sixth payment, which was to be made when the standing trim was up, the sashes hung, and the porch built, was to be $7,000, the five preceding payments aggregating $23,-000. On July 30, 1889, the architect certified that' the sum of $30,000 was due to Barron & Barron “on account of work executed and materials supplied new building ” (which was the only certificate given by him during the progress of the work), and on this certificate the defendant Schuback made the sixth payment. On the 6th of September, 1889, and before the filing of any of the liens hereinafter mentioned, a payment of $4,170 was made by Schuback to Barron & Barron ; being apparently an advance on account of the seventh and last payment, which was not then due. On the 8th of October, 1889, Schuback served on Barron & Barron a notice in writing, of some sort, about which the record is not clear, but which the referee finds was a notice that he (Sebuback) elected to finish the work upon the account and at the expense of the contractors. So far as the case shows, Barron & Barron, after the 11th of October, ceased work upon the building, Schuback took charge, and whatsoever was subsequently done upon the building was done by him, or under his direction. Barron & Barron, although contractors • for the whole building, did only the brick and mason work, employing subcontractors for the remainder; and it would seem that the sums due from them to the subcontractors were in excess of the amount due to them from Schuback. The plaintiff filed a lien for the amount of his claim on the 8th of October, 1889, and on November 1, 1889, commenced this action against Barron & Barron and Schuback for the foreclosure of his lien; joining with them, as parties defendant, twelve subcontractors, who had also filed liens for the amount of their respective claims. The complaint contained, among other things, the allegation that Barron & Barron, the contractors, had duly performed all the conditions of the contract, and had so far completed the same as to become entitled to receive thereon the last payment,—the sum of $13,000. The defendant Schuback answered, denying that any sum was due to Barron & Barron under the contract, and alleging that they had neglected and refused to complete the buildings, or to fulfill their obligations under the contract, to the said defendant’s damage $10,000, which sum he claimed as a set-off against any amount that might be due from him to Barron & Barron. The defendant lienors also answered, alleging performance by Barron & Barron, and that there was due on the contract the last payment of $13,-000, and asking judgment, respectively, for the foreclosure of their liens. The defendant Schuback put in substantially the same answer to the claim of the defendant lienors as to that of the plaintiff. The issues thus raised were sent to a referee, who reported in favor of the lienors. The general term of the court of common pleas reversed the judgment thereupon entered, and ordered another reference. On this second reference the referee reported adversely to the claims of the lienors, and dismissed their claims, as against Sehuback; giving some of them judgment, however, against Barron & Barron for the amount of their claims. From this judgment only two of the lienors (Kertscher & Markthaler, subcontractors for the cabinet and trim work, and Bonner & Van Court, subcontractors for steam fitting) appealed, the plaintiff and the other lienors having apparently abandoned the action,
    William T. Tomlinson, for app’lts Kertscher & Markthaler ; John C. Coleman, for app’lts Bonner & Van Court ; Charles B. Meyer, for resp’t.
   O’BRIEN, J.

—The last payment, out of which the appellants insist their liens should be paid, by the terms of the contract, was due when the buildings were completed. By the complaint, and by the answers, not only of the owner, but also of the defendant lienors, who are appellants here, the issue tendered was whether or not the work on the buildings was substantially performed in accordance with the plans and specifications. The confusion which has been introduced is due entirely to the failure to confine the proof to the issue thus presented. After the introduction of evidence by the lienors tending to support their contention of complete or substantial performance, and fearing that they might fail upon their proof, they were allowed without an amendment of the pleadings, and against the objection of the owner, to offer evidence excusing the failure of the contractor to perform, and tending to show that the owner subsequently completed the buildings, and thus to shift their ground, and tender another issue, not presented by the pleadings. The case thus assumes a new phase, and we are referred to testimony in this voluminous record tending to show, as claimed by the lienors, that the owner, under a provision of the contract, gave notice to the contractors that, by reason of their failure to furnish a sufficiency of, material and workmen, he elected, himself, to complete the work, and that he did so complete it, for an amount which is nowhere proven or determined or found, but which, it is insisted, was less than the last payment due under the contract. In passing, we may remark, upon this question of performance by the owner, that assuming two evidence tends to show that in some was the owner put the buildings into a habitable condition, nevertheless such evidence does not prove, nor is there any finding, that the owner completed them according to the plans and specifications; and if, as claimed by the lienors, the testimony tends to show they were completed by the owner, we are unable, except in respect to one particular, — viz. some trim work, for which he paid, — to determine in what manner or to what extent such work confomed to or deviated from the plans and specifications. "Upon sufficient evidence the referee has found that the contractors did not complete, or substantially complete, the buildings; and therefore the conclusion follows, necessarily, that there was a failure to sustain the only issue which was tendered by the pleadings, either as between the plaintiff or the other lienors and the owner. In Elting v. Dayton, 43 St. Rep. 363, which was an action brought by a builder to recover for work done under a contract, alleging full per tor than ce on his part, and wherein, the proof in this respect having failed, evidence of modification of the contract, or waiver, was offered by the plaintiff, by way of excuse, against the objection of the owner, such testimony was held inadmissible under the pleadings; the presiding justice of this court, who wrote the opinion in that case, saying:

“An allegation in the complaint that the terms of a contract have been fully complied with does not authorize proof that it has not been complied with, because of certain facts, in respect to which no mention is made in the pleadings. * * * The only issue tendered by a pleadieg containing this allegation is as to completion of the contract,- not to excuses for nonperformance. It might have been true that, upon a proper application made, the plaintiff would have been allowed to amend his complaint, and, if no objection had been taken to the admission of this testimony, that this court would have amended the complaint in order to support the judgment. But in view of the fact that objection was taken to this testimony at the time of the trial, and upon the precise ground which is urged here, and exception taken to the overruling of the objection, the court cannot consider the pleadings amended to conform to the proof.”

The advantage of the rule which requires that a trial should be conducted, and a conclusion reached, secundum allegata et probata, is well exemplified in this case, wherein, after we depart from the point indicated by the pleadings, we are taken from a clear and open way into a labyrinth of bypaths, which the appellants’ counsel themselves have pursued, and which they now urge upon the court to follow, without any well-defined motion of where they will lead, but with the hope that a way can be found to reach a satisfactory destination. The referee has traveled over most of these, and with his account of the excursion we might well rest content, were it not that it is insisted that in one or two places, most fatal to the appellants, he lost his way.

It is insisted that the contractors did not abandon the work, but were prevented by the owner from proceeding beyond October 11, 1889, and therefore, were entitled to recover, in any view of the case, upon a quantum meruit, whether the buildings were finally completed or not. If the right to recover were placed on this ground, and the evidence were sufficiently clear to support a finding that the contractors did -not abandon the work, but were prevented by the owner from completing it, there might be some force in this contention. But not only is there no finding, but the evidence does not satisfactorily show, that, through any fault of the owner, the contractors were prevented from performing their contract. There was some evidence from which it appeared that, instead of cash, the owner substituted notes, which the contractors were obliged to have discounted, and that this, to some extent, embarrassed the contractors. But the latter did not claim or prove that the owner was not justified in giving the notice of his election to complete the work himself; all that appears being that, upon getting such notice, the contractors thereafter ceased to do any work upon the buildings.

It is further insisted that the election by the owner to complete the work, whether rightful or wrongful, does not change the lienors’ rights; the argument being that if the building was substantially complete, under the contract, before the action was commenced, it matters not whether by the contractor, or by the contractor pro hac vice, in either event the lienors would be entitled to the benefit of the rule of substantial performance, whether such was the work of Schuback, the owner, or of Barron & Barron, the contractors. We do not assent to this proposition, because the lienors’ right was predicated upon the substantial completion by the contractor; and, if the owner rightfully elected to take the contractors’ place, the subsequent completion by him of the contract would present a case for the application of the rule laid down in Van Clief v. Van Vechten, 130 N. Y. 577 ; 42 St. Rep. 736, which is thus stated:

“If nothing is due to the contractor, pursuant to the contract, when the lien is filed, and he abandons the undertaking without just cause, but the owner completes the building according to the contract, under a provision thereof permitting it, the lien attaches, to the extent of the difference between the cost of completion and. the amount unpaid when the lien was filed.”

The lienors, however, did not base their claims upon any theory which would entitled them to the benefit of this rule, but apon the ground that the contractors had substantially completed; and such testimony as we offered, as already pointed out, not only introduced a variance in the cause, but was not directed to showing a completion of the contract by the owner according to the plans and specifications.

It is urged, however, that this latter burden was upon the owner,—to show what was done after he elected to go on with the work, and the cost thereof. But such is not the rule. As said in Beardsley v. Cook, 143 N.Y. at page 150; 62 St. Rep. 144:

“The plaintiff was bound to show that an amount or portion of the contract price which the defendant had stipulated to pay for the erection of the houses, equal to his claim or to the recover? still remained in his hands, over and above what he had expended to complete them." '

That case is an instructive one, because some of its features are like the case at bar, and some of the principles there enunciated are here directly applicable and controlling. In that case the defendant entered into a written agreement with the firm of Davis & Fav. buildeys, whereby they agreed to furnish all the materials and labor in che erection of two houses for the defendant, to be completed on or before January 1, 1891, for the sum of $6,381, to be paid in installments as the work progressed and reached certain stages; the last payment, amounting to the sum of $2,181, to be made when the houses were completed. The plaintiff con. tracted with Davis & Fay to furnish for these houses the necessary interior and exterior trim and other materials; and after performing a part of the work, he procured from the builders a written order upon the defendant, requesting the latter to retain and pay to the plaintiff, on the last payment, the sum of $1,175, according to the terms of their contract with the plaintiff, which order ' was accepted by the defendant.

As said in the opinion:

“The builders never performed the contract, and never completed the houses. It may be that here was a sufficient excuse for nonperformance, but there is no finding on the subject, and it is not apparent in the proofs. There was a clause in the building contract to the effect that in case they failed to complete the houses and furnish the necessary materials and labor for that purpose, then the defendant might do it, and deduct the expense of the completion from any sums unpaid upon the contract. The defendant did complete the houses under this provision of the contract. Whether with or without the consent of the builders is not now very material. But the learned trial judge refused to find that the builders failed to perform their contract, and the amount expended by the defendant in completing the houses, which was the most important element in ascertaining' what portion, if any of the last payment, upon which the order in suit was to be paid over, became due to the contractors, has not been found. * * * The defendant elected to complete the performance of the contract himself, instead of insisting upon performance by the builders; and therefore any part of the contract price, or of the last paymemt, if it remains in his hands after deducting the expense of completing the houses, is applicable to the payment of the plaintiff’s claim, and under such circumstances the certificate of the architect would not be necessary to enable the builders or the plaintiff to recover the balance remaining in the defendant’s hands. But the difficulty is that the learned trial judge apparently refused to go into these questions, or to find what the balance actually was, and it is not the province of an appellate court to attempt to spell out the facts from conflicting evidence.”

In that case a recovery was had, but for insufficiency in the proof, part of which has been pointed out, the judgment was reversed and a new trial granted. Here, because the testimony was insufficient, the referee decided against the lienors, for reasons which are fully and ably stated in his opinion. We might have rested content with that opinion, were it not that we were impressed by the suggestion that had the owner fully completed the contract, according to 'the plans and specifications, there would probably have been a surplus remaining in his hands after paying for such completion, which, in justice, should go to the lienors. The answer to such suggestion, however, is that, in the absence of definite proof or findings, we are asked to guess or surmise as to whether the buildings were completed by the owner according to the plans and specifications, the cost of such completion, and the difference, if any, between the amount unpaid on the contract, and the amount which it would cost to complete the buildings according to the plans and specifications.

We cannot assume that it would not cost the full amount of the contract price to complete the buildings. It will thus be seen that if we disregard the pleadings, and as urged by appellants, examine the record for the purpose of determining whether the lienors are entitled, upon any theory, to any amount, we must conclude, in view of the indefinite, unsatisfactory, and cloudy condition of the proof, that the lienors have not established their right to recover upon any theory, leaving no alternative but a dismissal of the complaint.

As this appeal is presented after a second trial, in which the lienors were fully apprised of the grounds which would be urged against them, as it is not claimed that they have other or different proof which might be available upon another trial, we do not see how the judgment, which is right upon the record, can be disturbed by us. We think, therefore not only for the reasons stated by the referee, but for those which we have advanced as supplemental thereto, that the judgment should be affirmed, with costs.

All concur.


author: BARTLETT, J.

text:
    Simon Frindel, App’lt, v. Nochem Maier Schaikewitz, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Evidence—Payment.
    Where, in action for money loaned, the defendant pleads payment and testifies that the payment was made from certain moneys received from his employer after working for him for a certain length of time, evidence as to the amount of salary received by him is admissible to disprove his testimony. ,
    8. Same—Rebuttal.
    The plaintiff need not introduce, in support of his primary case, evidence to disprove a plea of payment, but may, in rebuttal, testify in regard to such alleged payment or to admissions by defendant tending to disprove it.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.
    M. Hallheimer, for app’lt; Abraham H. Sarasohn, for resp’t.
   BARTLETT, J.

—Were it not for an erroneous ruling sustaining an objection to a question asked of the plaintiff in rebuttal, we should not interfere with the judgment in the present case. The action was brought to recover the aggregate amount of a number of loans of money, alleged to have been made chiefly in the empire of Russia, by the plaintiff to the defendant. The defendant denied having borrowed the money, with the exception of two items,—being $24, loaned to him for a ticket from Hamburg to Hew York, in 1889, and twenty roubles in cash, lent at the samo time. As to these items, the answer expressly alleged that the two said sums of money were repaid to the plaintiff, by the defendant within a few weeks after his arrival in this country, in October, 1889. The pleadings thus presented a direct issue as to the payment of these two amounts. The defendant testified in his own behalf that, as soon as he came to this country, in 1889, he became engaged in Poole’s Theater, on Eighth street, New York, as a writer; that, when he received $100 from this theater, about ten days after he came here, he repaid the plaintiff for the passage ticket and the twenty roubles, by giving him $35. He further stated that the payment was made to the plaintiff in the theater, immediately after he received the $100. The plaintiff, being called in rebuttal, positively denied having received payment. He swore that he never received any money from the defendant, in any theater. The plaintiff was then asked, “Q. Do you know how much he earned in that theater ?” This question was objected to as immaterial, the objection was sustained, and the plaintiff excepted. The next question was, “Q. Did he say to you how much he earned in that theater?” The court sustained the objection of the defendant’s counsel to this question, as immaterial, and not in rebuttal, and an exception was duly taken in behalf of the plaintiff. It seems to us that the learned trial court erred in excluding the testimony sought to be elicited by this last question. The plaintiff, when he testified in support of his primary case, was not called upon to go into the matter of the alleged payment at the theater in October, 1889. It became proper for him to give evidence on that subject only after the defendant had introduced proof to support his plea of payment at that time. After such proof had been laid before the jury, the plaintiff, it seems to us, had a clear right to give his version of the circumstances concerning the alleged payment, and, furthermore, to testsfy to any admissions by the defendant, if any had been made to him, tending to show that the defendant never actually received the fund of $100 out of which he claimed to have paid his debt. The evident purpose of the question as to whether the defendant had told the plaintiff how much he earned in that theater was to show that the defendant’s own statement of his earnings there was inconsistent with his present claim that when he had been in this country only about ten days he had received from the theater as much as $100. It is impossible to say that the erroneous exclusion of such testimony was not harmful to the plaintiff. The case was one in which the evidence was very conflicting, and in which even slight circumstances, if admissible in evidence, might affect the result. But a declaration by one of the parties tending to discredit his own testimony would not be a slight circumstance, but one of considerable significance, and the effect of the ruling which we have considered was to prevent the introduction of evidence tending to establish such declarations. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

•All concur. ^


author: CLLEN, J.

text:
    Fitz M. Whallon, Resp’t, v. Sprague Electric Elevator Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed February 4, 1896.)

    1. Master and servant—Safe place.
    Tile master must provide the servant a reasonably safe place in which to do his work, but this rule applies only where the place is either under the control of the master, or, in the ordinary conduct of the work, should have been under his control.
    2. Samé. '
    But, where the master sends his workmen to work on the premises or property of others, it is not his duty to provide a safe place for the servant.
    8 Same—Permanent and temporary structure.
    While there is a distinction to be made between what is a permanent and what is a temporary structure, the distinction is that what is temporary must he considered as an “appliance,” and only what is permanent as a “place.”
    4. ame.
    In such case, the duty of the master is discharged when it furnishes the naterial to construct the temporary structure, and the failure to use the naterial or the improper use of it, by its superintendent, is the negligence f a fellow servant in the detail of the wo-rk, for which the master is not able. So held, where, an employe of defendant, who had contracted only ) put elevators in a building, being sent to an upper story to measure the oenings for elevators, was injured by stepping off an iron beam onto an iseeure scaffold, which had been erected by another, who had the contact for putting in a tile flooring, and was being used for such purpose.
    Lppeal from a judgment for plaintiff, and from an order denying motion for a new trial.

      W. & C. W. Ridgway, for app’lt ; Herbert T. Ketcham, for resp.
   CLLEN, J.

—The action is servant against master, to recover dan>es for personal injuries claimed to have been caused by the defeíant’s negligence. It appears from the evidence that the Post.Telegraph Building was in the course of erection in the city of Hr York. The defendant was engaged in the construction of the e/ators in that building. The plaintiff was a workman in defen,nt’s employ, and had worked about the building for some weeks On the occasion of the accident he was sent to the seventh story ithe building with one Cantilon, a millwright, also in the defencit’s employ, to take measurements at' the hatchways or openin where the elevators were to be placed and operated. The constnion of the building had so far progressed' that the iron girders; this story were in place, but the floor had not been laid. The fle was to consist of tiled arches turned between the iron beams, he work of laying the floor was being done by the Pittsburgh Ira-Gotta Company. In order to prosecute the work, the worlctneff that company made a scaffold between the beams to serve a <tble purpose,— as a center on which to turn the arches and. sus'a the tiles until the mortar set, and as a scaffold on which tiworkmen stood. In going from the hatchway at the south side of the building to another opening, at the north side, the plaintiff stepped off the iron beam, onto the scaffotd, which broke, causing him to fall and severely injure himself. There was evidence given tending to show that the planks used by the terracotta company were insufficient and unfit for the purpose, and that Cantilon had called the attention of Williams, who was defendant’s superintendent on the work, to the fact, some two weeks before the accident. On the day of the accident, Williams told Cantilon “to be careful,—not to take any chances,—and, if the scaffolding was laid and secure,” to take plaintiff with him and make the measurements. Cantilon went to the seventh story, and found the scaffold not yet laid. On the second visit he found it com pleted, and plaintiff and he proceeded to make the measurements At the close of the plaintiff’s case the defendant moved to dismis the complaint on the ground of contributory negligence of tie plaintiff, and that no negligence upon the part of the defendait had been established. The motion was denied, and an exceptim to that ruling raises the only question involved on this appalThe first ground, that of contributory negligence of the plaintiff, we think without merit; but the second ground, in onr judgmnt, was well taken.

For the appellant it is contended that the question presentí! is not that of a place to work, but that of an appliance with wich to work. The respondent contends that the question is wheher the master provided a reasonably safe place for the plaintiff to io his work. We think, on either assumption, the same concltsim results. While the rule is well settled that the master must povide the servant a reasonably safe place to do his work, it is pin that this rule only applies where the place is either under the cntrol of the master, or, in the ordinary conduct of the work, shcld have been under his control. In a factory, a mill, a shop, or eep a mine or excavation, occupied or worked by the master, it inis duty to take reasonable care that the place is secure and saffor his servant, and the servant has the right to assume that the mter has discharged his duty in that respect. But, where the mter sends his workmen to work on the premises or property of ofirs, it cannot be said to be his duty to provide a safe place fothe servant, for the place is not in any way provided by the ititer. I cannot find any reported decision in which it has been attepted to enforce liability in such a case. The defendant here ll no share in the construction of the building, save to erect the eletors. Its implied license on the premises was confined to such pts as were necessary for it to occupy in the work, or in obtainin^ccess thereto; but it had no control over, nor was it responsibler, the condition of the building. The learned counsel for the resident concedes that the defendant could not have been held lile for any defect in the permanent structure, but insists that tie is a distinction to be made between what is permanent antfhat is temporary. We believe that this distinction may be welljmded, but the necessary result of such a distinction is that wlfis temporary must be considered as an “ appliance,” and onjvhat is permanent as a “ place.” This seems to be the basis of® decision in Butler v. Townsend, 126 N.Y. 105; 36 St. Rep. 508, where it was held that a staging on which calkers stood while at work on a vessel was not a “place,” but an “appliance” by means of which the work was done. Assuming the scaffold to have .been an appliance, the defendant did not construct it, and the only question is, did it, by sending the plaintiff to the floor where it was laid, adopt it as its own? The learned trial court'charged the jury that, if it was necessary to furnish the plaintiff a scaffold, it was not necessary that the defendant build one; that, if it found a scaffold there, it was at liberty to use it, but it was bound to ascertain whether it was safe. We think there was nothing in the evidence which would justify a finding that it was necessary for the defendant to construct a scaffold on this floor. The danger, of course, was that of falling through the open spaces between the beams. 'The defendant had furnished planlcs to place across such spaces, and they were used when work was being done at the elevator shafts. The evidence is very meager as to how the defendant’s work at this building was being carried on- There was-nothing to show that it had at any time before placed scaffolds over the floors to enable its workmen to cross them to the elevator shafts, or that such was the ordinary custom in the prosecution of similar work. Nor was the condition of the work such as, in the absence of proof as to custom, to authorize the inference that it should have erected scaffolds. The tile men were at work, turning the arches between the beams. As testified to by the-plaintiff’s witness Cantilon, the only thing that could have been done was to lay the planks across the floor spaces, for the defendant was not at liberty to interrupt the work of the tile men. Planks had been provided by the defendant. True, there were none on the seventh story; but, if they should have been taken to that story, it is not suggested that there were any other workmen than plaintiff and Cantilon to carry them there. In this respect the case is much weaker than that of Cregan v. Marston, 126 N. Y. 568 ; 38 St. Rep. 428, where it was held that the master was not liable for the negligent use by his engineer of an unsound rope, he having furnished a supply of good ropes, though the ropes at the time were locked up in a storehouse. But, if a platform was to be laid across the building, it also does not appear that it would have been the duty of any one but the plaintiff and Cantilon to have laid it. While the planks were being laid, the spaces between the beams would remain open, and the danger of injury would certainly be as great while laying the planks as while traversing the floor without the planks. Conceding, however, the duty of the defendant in this respect, its duty was discharged when it furnished the planks. The failure to use them, or the improper use of them, whether by Williams or Cantilon was the negligence of a fellow servant in the detail of the work, for which the master is not liable. Cullen v. Norton, 126 N. Y. 1 ; 36 St. Rep. 359. The plaintiff knew that the scaffold was not the scaffold of his master, or provided by him, by built and in use by persons carrying on a different part of the work. He made inquiries of the workmen whether tire scaffold was safe, and was told that it was. He was not guilty of negligence in using it under the circumstances, but still, in working on this building, which he knew—in the main, and with the exception of a small detail—was not constructed by his master, he took the risk of danger from such construction. These were the risks of his employment. If there was any negligence in this case, it was either that of Williams in sending plaintiff to seventh story while it was in such an unfinished condition, or that of Cantilon in failing to discover the defect in the platform. As the defendant neither built nor maintained the scaffold, the failure of Cantilon to discover its defects was imputable to it. The only evidence as to the authority and powers of Williams is that he was superintendent of defendant’s work at the building. The determination of when the measurements should be taken in the upper floors, and how far the construction of the building should have progressed before the attempt to take the measurements should be made, was intrusted to him ; but under the case Of Cullen v. Norton, supra, his acts in those respects were a part performance of the work itself, and in such acts he did not represent the master, and the acts were those of a fellow servant.

The judgment and order denying motion for new trial appealed from, should be reversed, and a new trial ordered; costs to abide event.

All concur. ■'


author: PER CURIAM.

text:
    John F. Talmage, Resp’t, v. Sanitary Security Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Febr'y 4, 1896.)

    Bill op pabticulabs—False bepbesebtatiobs.
    In an action against a corporation to recover damages for alleged false representations of defendant’s agents, no case is made for the granting of a hill of particulars where no copy of thé answer is furnished to the judge who hears the motion, and there is no statement in the moving affidavit as to what-the answer contains.
    Appeal from an order denying a motion for a billl of particulars.
    John Berry for app’lt; James McKeen, for resp’t.
   PER CURIAM.

—The complaint alleged that the plaintiff was induced to purchase certain stock of defendant by means of falsd representations of authorized agents of the corporation. It did not disclose, however, who the persons were by whom the repretentations were said to have been made. In order to ascertain ■ these names, the defendant moved on special term, for a bill of particulars, upon an affidavit by the president of the corporation stating that the defendant and its officers were ignorant of the names of the persons who it was alleged bad made the false representations relied upon. If this affidavit had been accompanied bv proof that the allegations of the complaint in respect to the false representations were denied by the defendant, then a proper case for relief would have been made out, so far as to call upon the special'term to require the plaintiff to give the names of the persons by whom he would seek to show that the misrepresentations had been made; -but no copy of the answer appears to have been furnished to the judge who heard the motion, and there is no statement in the moving affidavit as to what the answer contains.

On this record, we feel constrained to confirm the order appealed from, but without costs, and with leave to defendant to renew its motion for a bill of particulars upon papers showing that the allegations of the complaint in regard to the false representations are denied.


author:
BROWN, P. J. PRATT, J.
      _PRATT, T.

text:
    Peter Hughes, App’lt, v. William B. Davenport, Public Administrator, etc., Resp’t. Kate Walsh, App’lt, v. Same, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Witness—Credibility.
    The rule that a fact testified to by a disinterested witness, who is not discredited, which is not in conflict with other evidence, is to be taken as legally established, and cannot be disregarded by the court or jury, is not applicable where the person who can contradict the witness, if his testimony is false, is not living.
    2. Same.
    The rule that the uncontradicted testimony of a disinterested witness is to he believed, is always subject to the limitation that the evidence is not improbable.
    3. Executors—Disputed claim.
    Both claims, in their entirety, were held, in these cases, to have been properly disallowed.
    Appeal from judgments permitting the report of a referee, to whom the claim was referred by stipulation, and disallowing each of said claims.
    Charles Reinhardt, for pl’ffs; Charles H. Otis, for deft.
   BROWN, P. J.

—The appeals in these two cases are from judgments entered upon a report of a referee. The appellants in each case presented a claim against the estate of Rudolph Bach, deceased, which, having been rejected by the administrator, were, by stipulation, referred to a referee to hear and determine, and, after a trial, were held by the referee not to be established. We have carefully examined the testimony in each case, and are of the opinion that the decision of the referee was correct, and that the judgment should be affirmed. The deceased was an unmarried man, who, from the year 1884 until his death, in 1893, lodged with Mrs. Walsh. He was about sixty-nine years of age at his death, and possessed of considerable property, and left no kin. During the last few years of his life he was troubled with a disease of his urinary organs, but, until a few months prior to his death, he was not incapacitated from pursuing his ordinary vocation of a bookbinder. Mor was he, until his last illness, confined to his home. The appellant Peter Hughes is a physician, who claims to have rendered Mr. Bach medical services from April 3, 1888, until his death. His bill shows charges for attendance nearly every alternate day during that period until his final illness, when the attendance was on every day. Mrs. Walsh’s bill is for services as a nurse. They appear, from the bill rendered, to have commenced a little earlier than the physician’s services. The charge is for the period from January 1,-1888, to the death of the deceased. Two hundred and eighty-four weeks are charged for at $5 per week, and the balance of the period at $14 per week. The physician’s bill amounts to $2,440, and Mrs. Walsh’s to $1,620. In addition to these two claims,'it also appears that an undertaker’s bill for the expenses of Mr. Bach’s funeral was presented to the respondent, and rejected, which amounted to the sum of $1,406. As the deceased left no relatives and no immediate friends, it is fair to presume that the services rendered by the undertaker were upon the employment of Mrs. Walsh, especially as she testified that she was a witness in the proceedings instituted by the undertaker against the respondent in support of the claim.

Mrs. Walsh was the chief witness in support of Mr. Hughes’ bill, and Mr. Hughes was the chief witness in support of Mrs. Walsh’s bill. It would serve no useful purpose to point out the inaccuracies and inconsistencies in the testimony of these witnesses. It is sufficient to say that we are satisfied that very much of their testimony is untrue. Mr. Bach is shown" to have been a man of very regular habits, and prudent and careful in his expenditures. He paid Mrs. Walsh regularly for his room, and for such meals as she served him, down to the time of his death. He is not shown to have contracted any other debts, or to have left any bills unpaid. During the period from April 1, 1888, to August 1, 1893, he left his lodging place every morning, between six and seven o’clock, walked to his place of business, a distance of about twenty blocks, remained there all day, and walked back to his home in the evening. He never made complaint .to his fellow workmen, and those who associated with him daily at his place of business were not aware that he suffered from any physical weakness or disease. In the face of these facts, it is impossible for us to believe that during the years from 1888 to August, 1893, he required the daily care of a nurse, or the daily advice or services of a physician, or that, if the claimants did occasionally render him services, that he left their bills unpaid. It is incredible that a man who habitually paid his landlady for his room rent and his meals should have left unpaid the services rendered to him as a nurse, by the same person, covering a period of years. And it is equally incredible that if he was a sick man for five years preceding his death, requiring every other ,day the attendance and services of a physician, that fact should have been unknown to his daily associates, and that he left the whole bill therefor unpaid. The rule that a fact testified to by a disinterested witness, who is not discredited, which is not in conflict with other evidence, is to be taken as legally established, and cannot be disregarded by the court or jury, is not applicable to this class of cases. The person who could contradict the witness, if his testimony is false, is not living; and the courts have uniformly enforced the rule that claims withheld during the life of an alleged debtor, and sought to be enforced after his death, must be established by satisfactory proof. Kearney v. McKeon, 85 N. Y. 136; Rowland v. Howard, 75 Hun, 4; 56 St. Rep. 722. But the rule that the uncontradicted testimony of a disinterested witness is to be believed is always subject to the limitation that the evidence is not improbable. We are of the opinion that the testimony given in support of the claims presented by the appellants is improbable. It is not unlikely that there may be a just claim for services rendered during the last illness of Mr. Bach, but we are not satisfied that either of the appellants have a just claim for the amounts or for the'periods stated "in the testimony. And we are unable to find in the testimony anything that would support the conclusion that they a lawful claim for any amount. The fictitious character of the bills rendered to the administrator, and the exaggeration of the services rendered, pervade the whole testimony, and require that the whole claim presented should be rejected. The judgment must be affirmed, with costs.

CULLEN, BARTLETT, and HATCH, JJ., concur.

PRATT, J.

(dissenting in the Hughes Case). — There is no question that decedent died November 27, 1898. His disease was such that he was compelled to give up business about August 1, 1894. The disease was a painful one, which would render necessary the frequent services of a physician. It is proved that as early as 1890 he bought a catheter and a rubber urinal, — such articles as would be necessary in his disease. He was in easy circumstances, and it is inconceivable that he should not have availed himself of the services of a physician, and that extensively. There is no suggestion that any physician other than plaintiff was called. The mistress of the house where decedent lived testified that plaintiff was decedent’s physician; "that she frequently went for plaintiff, at decedent’s request, and saw him in attendance. On one occasion she saw an operation performed. The rendition of services to a large amount is conclusively proved, and there is no evidence to the contrary. The testimony of the boarding mistress, who also acted as’nurse, was not exposed to adverse criticism, except upon the ground that she herself had claim against the estate and might need the aid of this plaintiff to prove her case. We do not think that objection is entitled to much weight. The only question left in doubt is as to the amount plaintiff should recover. An error was committed in admitting evidence of the claim of Hamilton.

The judgment should be reversed, and a new trial had before a new referee; costs to abide the event.

_PRATT, T.

(dissenting in the Walsh Case). — The decedent _PRATT, lived four months after he was obliged to leave bis business. Some one must have taken care of him, and rendered the services this condition required. The whole case shows that person must have been the plaintiff. There is no suggestion that she has been paid. Her case is prejudiced by the fact that she included a claim for services rendered for several years before decedent’s last sickness. For such services it may well be that, at the time they were rendered, plaintiff did not expect to make a formal charge, doubtless thinking'she would receive more by leaving the matter to decedent’s liberality. Whether that would debar from recovering for them, when it appears that decedent has not provided for paying her, may be doubted. But the necessary services for the last four months of decedent’s life would-be so considerable that very strong evidence would be required to prove that she intended to render them gratuitously. Ho such' evidence is given. For such services the plaintiff is, without doubt, entitled to recover. Their value is shown to be $15 a week, and for the four months amount to $240.

The judgment should be reversed, and the plaintiff have judgment for $240 and costs.


author: VAN BRUNT, P. J.

text:
    George Richards et al., App’lts, v. William E. D. Stokes, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 7, 1896.)

    Reference—Compulsory.
    A compulsory reference will be ordered, where, in an action by attorneys to recover fees for professional services; the account involves almost innumerable items of service, rendered under many retainers, and it will be impossible for the jury to separate the services and charge them to the proper parties.
    Appeal from an order denying a motion for reference.
    Joseph H. Choate, for app’lt; A. B. Boardman, for resp’t.
   VAN BRUNT, P. J.

—This action was brought by the plaintiffs, who are copartners in business as attorneys and counselors at law, to recover for professional services alleged to have been performed by the plaintiffs for the defendant, and for which pay.ment has not been made. The defendant, in his answer, admits the retainer of the plaintiffs, or some, of them, and the rendition of services, but denies any knowledge or information of the details and particulars of the same, as contained in the plaintiffs’ bill of particulars, except as they were in the answer thereinafter admitte 1. The answer therupon admits the rendition of certain services, but denies their value, and alleges payment as to most of them. In respect to other services, relating to the last will- and testament of James Stokes, deceased, the defendant alleges that ndne of the services in respect thereto were rendered to him individually, or otherwise than as executor of the estate, and that they were fully paid for. The answer then all ages misconduct upon the part of the- plaintiffs, exaggeration of the difficulty, perplexity, and importance of the action and matters in respect to which the services were rendered, and that the plaintiffs willfully misled the defendant into a mistaken belief of the peril of his situation, and the obstacles in the way of the relief he sought, in order to magnify the value of their services. And the answer further alleges that the real work and services in the business were done by the counsel retained to aid the plaintiffs, and by the other lawyers engaged by the executors in the contest in respect to the will of said James Stokes, and that the plaintiffs made certain false claims in regard to the agreement between the defendant and themselves, and misconducted themselves in reference to the business intrusted to their charge. The plaintiffs served a bill of particulars, containing a large number of items, and covering a considerable period of time. A motion having been made for a reference, such motion was denied, and from the order thereupon entered this appeal is taken.

The defendant claims that the order should be sustained upon three grounds : (1) Because a long account is not involved; more than 95 per cent, of the plaintiffs’ entire claim being for services under a single retainer and employment, and connected with a single subject-matter. (2) Because “there appears upon the face of the claim good reason to suppose that the client’s resistance on the ground of exorbitance and oppression may prove to be well founded.” (3) Because the issue of the plaintiffs’ misconduct, and other issues raised by the answer, ought to be tried by a jury.

It is undoubtedly true that, where there is an issue raised of an attorney’s misconduct, it ought ordinarily to be tried by a jury. But it by no means follows that all the attorney’s rights are to be sacrificed because a defendant, in his answer, makes a charge of this kind upon a suit being brought by the attorney to recover compensation for his services. An examination of the pleadings and. the bill of particulars shows, beyond question, that a long account is involved. The services claimed were numerous and complex. They were by no means covered by a single retainer, which we understand to mean a retainer in a single proceeding, and not a retainer to attend generally to the business of a client, which results in numerous and various proceedings. We are not dealing with a long story regarding a single retainer, but with almost innumerable items of service rendered under many retainers. In view of the position of the plaintiffs as counsel for the defendant in looking after his individual interest, and their retainer by ■the executors of the will of James Stokes, deceased, accepted with the knowledge and consent of the defendant, it would be impossible for any jury to separate the services which were rendered for the estate and those which were rendered for the defendant individually. It is true that the defendant claims that none of such services were rendered for him, but that they were all rendered to the estate, and that the attorneys were paid in full by the estate. But, if this claim upon the part of the defendant is not well founded, it would be impossible, as already stated, for any jury to. keep in mind the testimony which will necessarily be offered in respect to the services which were properly chargeable to the defendant, and not chargeable to the estate. The services in reference to the assignments and suits were numerous and complicated, and the proof in respect thereto will necessarily call for a detailed examination, such as a jury would be unable to give. It may be true that in the bills of particulars the plaintiffs have amplified the details of their services. But, if this case does not show that its trial will involve the examination of a long account, then it is because the relation of attorney and client can never involve such an account. We recognize and appreciate the wholesome rules which have been laid down in this class of cases,—notably in Randall v. Sherman, 131 ; N. Y. 669 ; 43 St. Rep. 923, and Feeter v. Arkenburg, 147 N. Y. 237 ; 69 St. Rep. 523,— but we are not prepared to put attorneys entirely outside the pale of section 1013 of the Code. To refuse a reference here, upon the plea that a case of a long account is not made out, and to force the plaintiffs to go over every disputed item before a jury, would practically be a denial of justice. *

We think, therefore, that the motion for a reference should have been granted, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, to abide the final event. The parties can, undoubtedly, as they have heretofore done, agree upon a referee. If, however, they cannot do so, the court, upon the entry of the order on the decision of this appeal, will appoint a referee.

All concur.


author: PATTERSON, J.

text:
    Fifth Avenue Bank of Brooklyn, Resp’t, v. Joseph R. Cudlipp et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1, Parties—Mortgage—Foreclosure.
    The necessary parties to a foreclosure suit are the mortgagor and mortgagee, and those who have obtained rights or interest in the land subsequent to the mortgage.
    8. Same.
    Hostile rights prior to the mortgage are not to be settled in foreclosure suits. So held, where a remainderman, after a devise to a father for life, remainder to his children in fee, mortgaged his interests and died pending an action to foreclose, and the other children claim that, by the mortgagor’s death his interest lapsed, that the whole remainder was in them, and asked to be made defendants to the foreclosure suit that they might set up their rights against the mortgagee. *
    Appeal from an order, denying a motion of certain parties to be made defendants in the action.
    W. W. Miles, Jr., for app’lts; Oliver J. Wells, for resp’t.
   PATTERSON, J.

—This is an appeal from an order denying an application of the appellants to be made parties to a foreclosure action. The persons seeking to intervene are two of the grandchildren of Joseph Cudlipp, by whose will a certain house and lot in the city of New York was devised to his son Joseph Cudlipp, Jr., for life, and on his death to his children in fee. Joseph Cudlipp, Jr., "is still living. In February, 189.4, he had three children,—the two appellants, and Joseph R, Cudlipp. The latter mortgaged Ms interest in remainder to the plaintiff. The mortgage was in process of foreclosure by this suit when he died. The appellants, claiming that by his death the one-third interest referred to lapsed, and the whole remainder is now in them, ask to be made parties, that they may set up their alleged rights against the mortgagee. They are not necessary parties. If their claim of title is valid, it is a title paramount. They would not take from John R Cudlipp, but under their grandfather’s will.- Theirs would be a prior title, and being such, is not to be adjudicated in this foreclosure action. They would not be cut off by decree. They seek, in effect, to have a judicial construction given in this action to tire will of their grandfather. The necessary parties to a foreclosure suit are the mortgagor and mortgagee and those who have obtained rights or interests in the land subsequent to the mortgage (Bank v. Goldman, 75 N. Y. 127; Fire Co. v. Lent, 6 Paige, 637; Frost v. Koon, 30 N. Y. 428), and asserted hostile prior rights to the mortgagee are not to be settled in foreclosure suits. Nelson v. Brown, 144 N. Y. 384; 63 St. Rep. 697.

The order must be affirmed, with $10 costs and disbursements.

All concur.


author: GAYNOR. J.

text:
    Allrich Jurgens, Pl’tf, v. Wilhelmina Rogge et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed February 6, 1896.)

    2. Dower—Devise n<r lieu of.

      A. husband's testamentary provision for his wife is not to be deemed as intended in lieu of dower, unless the will makes it so by express words, or a claim of dower will be inconsistent with other parts of the will or with its general plan. " ,
    S, Same.

      A devise to the widow for life or until she shall remarry, with the further provision that in the latter event the widow shall retain one-third of the then remaining estate, and that the balance shall he equally divided among the four children, is inconsistent with the claim of dower.
    Action for partition of real estate under provisions of a will
    J. R Soley, for pl’ff; S. T. Maddox, for def’ts.
   GAYNOR. J.

—A husband’s testamentary provision for his wife is not to be deemed as intended to be in lieu of dower, unless the will makes it so by express words, or a claim of dower would be inconsistent with other parts of the will or with its general plan. In either case, the widow is put to her election. By this will, the testator left all of bis property, real and personal, to his widow, so long as she remained his widow, for her sole use and benefit, and then added, viz.: “In case my widow should marry again, she may retain one-third of my then remaining estate; the balance to be divided share and share alike between my four children.” He died in 1877, and the widow was remarried. I£ the devise had been to the widow far life or until she should remarry, with remainder to the children upon the happening of either event, it would not be in lieu of dower, Bull v. Church, 5 Hill, 206; 2 Denio, 430 ; and the same would be true of a devise for life simply, with remainder to the children. Lewis v. Smith, 9 N. Y. 502. But the present case is different. It is a devise to the widow for life or until she should remarry, with the further provision that in the latter event the widow should retain one-third of the then remaining estate, and that the balance should be equally divided among the four children. Provision is made for her out of the remainder; so that the case is the same as though the will had provided for a like division upon the testator’s death, there being no life estate. I think this provision is inconsistent with a claim of dower. If the widow is to take one-third of the real estate under the will, and also have one-third set off by metes and bounds for her dower, only one-third remains for present division among the children. The language of the testator did not intend this, and1 the intention must govern. It must not be disturbed or disappointed. Adsit v. Adsit, 2 Johns. Ch. 448. The manifest, intention of a testator overrides rules of construction. They may be resorted to only when the intention is not manifest from the language of the will, naturally construed. They are never resorted to except out of necessity, namely, to spell out an intention. In re James; 144 N. Y. 7,8; 62 St. Rep. 855. I have not overlooked the Konvalinka v. Schlegel Case, 104 N. Y. 125 ; 5 St, Rep. 562. There was there a peremptory power of sale of the real estate, with a direction to divide the proceeds equally among the wife and children; so that the impossibility of dividing the land among them “equally,” by metes -and bounds, if the widow was also entitled to first have one-third of it set off to her by metes and bounds for her dower, was not presented. In Havens v. Havens, 1 Sandf. Ch. 324, the vice chancellor supposes a case (page 331) something like the present one, in which he says the widow would be entitled to her dower in addition to the devise to her, but his remarks are obiter. The devise of the one-third to the widow upon her remarriage is not for life, but absolutely. The words are that “she may retain one-third of my then remaining estate.” I do not see how this can be construed to mean that she might retain only one-third of her life estate. Besides, if she was only to take the one-third for life, there would be partial intestacy as to which third, and the presumption is against such an intention in the testator. Schult v. Moll, 132 N. Y. 122; 43 St. Rep. 484. It is manifest from the will that the testator meant to make thereby a complete disposition of his entire estate. Judgment accordingly.


text:
    Patrick Walsh, Resp’t v. James J. Campbell, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Appeal—Conflict inp evidence.
    A finding by a referee, on conflicting evidence, will not be disturbed on appeal.
    8. Contract—Counterclaim.
    In an action to recover on a building contract, it is not error to refuse to allow defendant for moneys paid for ordinary defect in plaste/ing, where it is shown that a house cannot be built without more or less cracking of the walls.
    Appeal from an interlocutory judgment in favor of plaintiff.
    James P. Campbell, for app’lt; Jereloman & Arrowsmith, for resp’t.
   O’BRIEN, J.

— The action (in form, to foreclose a mechanic’s lien) is brought to recover on a contract for building a house, and for extra work done on the same. The plaintiff was the builder and contractor, the defendant the owner. The appellant has excepted to certain findings and conclusions of the referee affecting three items: (1) For “ new tank on roof,” which foots up to $141.71, appellant claiming that plaintiff agreed to do that work for $100, and that he was therefore overcharged $41.71; (2) a cash payment, on extra work, of $300; (3) amount of necessary outlay in repairing defective plastering, $189.69,—making the amount to be deducted from plaintiff’s claim $531.40; leaving the net amount due plaintiff ($633.93-^$531.40) $102.53. Upon conflicting evidence, the referee has decided all these disputed facts in the plaintiff’s favor; and we might content ourselves by saying that an examination does not show any such preponderance of evidence upon any of these questions in defendant's favor as would justify our interfering with the conclusion of the referee.

Thus, as to the first of the disputed items, the charge for “ new tank on roof ” was for rebuilding one that had been burned. This, the defendant testified, the plaintiff agreed, prior to commencing work, to construct for $100; while the plaintiff claimed that no such agreement was made, although he did state, after he had commenced the work, in a conversation with the defendant, that it would be about that sum. Although defendant is supported by one witness, a janitor, who claims to have heard the conversation between the plaintiff and defendant at which the agreement was entered into, there was a clean-cut question of fact; and the referee having had the benefit, which we do not possess, of seeing the witnesses, and observing their demeanor, his conclusion that there was no agreement, and that the plaintiff should recover on a quantum meruit, should not be disturbed.

A similar criticism may be made upon the argument of the appellant as to the referee’s finding respecting the cash payment of $300. It appears that the defendant had two receipts, — one for for $300 “ on act. contract for building, mason work, carpentry &c.,”,and another one for $312 for taxes. The plaintiff’s testimony is that, on the evening of November 6, 1885, the defendant came to his house, and, in the presence of plaintiff’s cleric, asked him if he would pay his (defendant’s) taxes, which plaintiff agreed to do; that thereupon the defendant gave him $300, agreeing to pay the difference between that amount and the amount of the taxes; and that the recital in the receipt that the money was on account of the contract was a mistake. It is shown that on the next day the plaintiff went and paid his own taxes and the defendant’s, the latter amounting to $312,. and on the Saturday succeeding the defendant came and got the tax receipt. The plaintiff is corroborated by his clerk. The defendant admits that he went to plaintiff’s house on the evening of Nbvember 6th, but testified that no-', body was there but himself and the plaintiff, whom he requested to pay his taxes; that he gave plaintiff $300 on account of the contract, and took his receipt, and about two weeks afterwards paid him the exact amount of the taxes, $312, fof which plaintiff likewise gave him a receipt. This receipt, however, when pro-' duced bore date December 7th. The plaintiff’s explanation of this is that the defendant wanted a receipt for everything, and at his request he gave him one for taxes. There is nothing to show (beyond defendant’s statement) that on December 7th, or at any other time, the defendant paid plaintiff the sum of $312; and a point to be noted is that the plaintiff presented and demanded payment of a bill showing a balance, which was not disputed, and yet was erroneous tó the extent of $300 if the defendant’s contention is right as to the payment of two separate sums, one of $300 and one of $312. We think the referee was.right in concluding, upon the evidence, that the $300 received by plaintiff on November 6, 1885, was to be, and was, used to pay defendant’s taxes, and that the receipt stating that it was on account of the contract was a mistake.

The remaining item of $189.69 the defendant claims he was obliged to expend for repairs to the plastering, due to plaintiff’s bad workmanship. There was evidence tending to show that there were some cracks in the walls and ceilings, but it is proven that these were in no degree extraordinary, witnesses being produced whose testimony tended to prove that it was impossible to build a house without more or less cracking of the walls and ceilings, even when the work is done in a good workmanlike manner, and that this particular work was so done; that it is a common, if not the usual experience, in all newly-built houses, to find some cracks in the ceilings, which are not attributable to bad workmanship of the plasterer, but are due to the settling of the house, or, at times, to the manner in which the foundation is laid, the cellar dug, or the timbers laid or fastened. In this case, it appears that the defendant did the excavating himself. As stated with regard to the other' items, this was one of "fact, upon disputed evidence, and we think no sufficient reason has been shown why the findings of fact or the conclusion reached by the referee on sufficient evidence should be disturbed. The judgment should therefore be affirmed, with costs. All concur.