author: Gray, J.

text:
    Alvah J. Zimmer, App’lt, v. The New York Central & Hudson River Railroad Co., Resp't.

      (Court of Appeals,

      Filed March 21, 1893.)

    Carriers — Release—Limit of liability.
    Plaintiff’s agent shipped a valuable horse by defendant’s railroad, but signed a contract, whereby, “in consideration that said company will transport, at said reduced prices, one horse valued at $100, * * * in the event of the d ath, loss or injury of the animals from any causes which would make the carrier liable, such liability shall not in any case exceed an amount to be fixed according to the above valuation.” The horse was killed through the engine crashing into the car. Held, that the agreement of the company was to transport the horse at a reduced rate, upon the condition that its value should be as stated, and that it had limited its liability to that amount.
    Appeal from judgment of the supreme court, general term, third department, modifying judgment for plaintiff rendered on verdict of jury.

      C. H. Walts, for app’lt; C. D. Prescott, for resp’t.

       Affirming 42 St. Rep., 63.

   Gray, J.

The plaintiff owned a horse of considerable value, which he wished to send to Antwerp, R Y. He employed Coolidge as his agent for that purpose, who applied to the defendant at West Albany, R Y., for a car in which to effect the transportation. A contract was filled out and signed -by Coolidge and the .agent of the defendant. It was headed “ Live stock contract of release and agreed valuation according to the official classification of the New York Central & Hudson River Railroad.” It recited that the company transported live stock at certain prices “ earner’s risk,” and at reduced prices, upon certain risks being assumed by the .shipper, and upon the condition that the property was valued as stated below. The contract then read: “ Now in consideration that said company will transport at said reduced prices, one horse valued at not exceeding $100 * * * consigned to Gr. P. Coolidge, at Antwerp, N. Y., it is * * * agreed that in the event of the loss, death or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not, in any case, exceed an amount to be fixed according to the above valuation.” A previous clause contained an agreement that the company should not be liable for any injuries from causes generally connected with the bad conduct of the animals ; or in consequence of heat, or other ill effects from being crowded in cars or yards ; or on account of burning of hay, straw or other feeding material; nor was the company to be liable for any loss or damage sustained by reason of any delays, or of any insecurity of the cars. The loss of the horse occurred as the result of an accident. During the journey the engine, having been uncoupled to obtain coal and water, in backing down to the train, became unmanageable and crashed into the car in which Coolidge and his horse were, with the result of killing the horse.

The owner brought this action to recover its alleged value of $5,000, and obtained a verdict for $3,100. The judgment upon the verdict has been reversed by the general term, on the ground that the contract limited the recovery to $100, and interest thereon, and we think the reversal was correctly ordered. In view of the satisfactory opinion delivered at the general term, we do not feel called upon to enter into an elaborate discussion of the questions raised. It is the law of this state, as settled by many decisions of this court, that a common carrier may limit his liability by contract; and the contract may provide for immunity from the negligence of the carrier, or that of its agents ; but where the latter object is sought to be accomplished, the contract must be aptly expressed and in unequivocal terms. Kenney v. Railroad Co., 125 N. Y., 425; 35 St. Rep., 447.

In this case the contract did not exempt the company from liability for the negligence, which, as we must assume, occasioned the loss of the horse. That occurred through none of the causes particularly specified in the contract, and nothing precluded the plaintiff from recovering upon the negligence proven; but the amount of his recovery was limited by the contract to the amount of $100. That the plaintiff did not know of the terms of this contract is of no consequence. Coolidge was his agent, and will be presumed to have known and to have assented to the stipulation in the contract which limited the general liability of the carrier. Belger v. Dinsmore, 51 N. Y., 166; Steers v. Steamship Co., 57 id., 1. That presumption always holds good, unless some fraud or deception is practiced, which was not the fact in this case. There can be no question about the reasonableness of such a contract. It was based upon the consideration of a rate of transportation far below what it would have been if the carrier had assumed all the risks. It was entered into with full opportunity for ascertaining its terms, and it was incumbent upon the shipper, or owner, to acquaint himself with them, and if he has not done so he will, nevertheless, be held chargeable with their knowledge. Cases where parties, proposing to have articles of property transported by a common carrier, deliberately enter into some necessary contract relating to the transportation, differ materially from those cases of travelers who commit their trunks, or articles of baggage, to an agent of some express or transfer company, and receive at the moment some paper, which, as it has been said, amounts' simply to a voucher enabling them to follow and identify their property. Madan v. Sherard, 73 N. Y., 329. The difference is very obvious in the circumstances, which, in the one case, usually admit of no negotiation, or discussion, while, in the other, the shipment of the property is a matter of arrangement, with full opportunity for deliberate action.

In the case of Grossman v. Dodd, 137 N. Y., 00; 51 St. Rep., 000; lately affirmed by us on the opinion of the general term of the first department, 63 Hun, 324; 43 St. Rep., 375, where a traveller, landing from a steamship, delivered her trunk to an express company’s agent, and received back a printed paper, bearing the somewhat imposing title of “Domestic Bill of Lading,” the opinion of Justice O’Brien, at general term, adverts to the distinction which should control in the application of the rule of presumption to contracts for the shipment of merchandise, and to such contracts as local express companies endeavor to force upon the passenger.

The appellant’s counsel argues that this clause, limiting the liability of the company, does not refer to' an injury or death which is occasioned by its negligence as a bailee; but we think the language is far too general in the clause itself to bear him out. The agreement of the company was *to transport the horse at a reduced rate, upon the condition that its value should be as stated; and we would fail’to give adequate effect to the agreement and its consideration, if we should hold that the company had not limited the extent of.its liability in all events.

For the reasons stated, we think the judgment recovered at the circuit was properly reversed, and, therefore, under the stipulation, judgment absolute should be entered against the appellant, with costs to the respondent

All concur, except O’Brien, J., not sitting.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    William P. Hawes, App’lt, v. Charles G. Dobbs et al., Resp’ts.

      (Court of Appeals,

      Filed March 21, 1893.)

    Trial — Equity.
    Where a complaint prays only for equitable relief, and the facts therein alleged and proved upon the trial do not make a case entitling the plaintiff to such equitable relief, the trial judge commits no error in dismissing the complaint.

      Appeal from judgment of the New York common pleas, general term, affirming judgment entered upon a decision rendered at equity term of the court dismissing the complaint.
    The facts as alleged in the complaint, and found at the special .term, are substantially as follows : In June, 1887, the defendant Charles G. Dobbs owned certain real estate in the city of New York, subject to three mortgages given to secure, in the aggregate, the sum of $39,000. In that month he conveyed the real estate to William H. Niebuhr, subject to the three mortgages, for the consideration of $85,000, and took back a purchase money mortgage for the sum of $46,000. The deed was executed to Niebuhr in pursuance of a building contract between him and Dobbs, by which Dobbs agreed to advance to him the sum of $45,000, in instalments, to aid him in erecting buildings upon the real estate. In pursuance of that agreement, Niebuhr executed to Dobbs a mortgage for the sum of $45,000 to secure the money thus to be advanced. Thereafter, in October, 1887, Niebuhr conveyed, by deed, to Gilbert E. Hawes, an undivided one-fourth part of the real estate, subject to the mortgages, and that deed was delivered pursuant to an agreement and understanding between him, Dobbs and Niebuhr, whereby Dobbs undertook and agreed to protect and secure to Hawes and his assigns his interest in the real estate thus conveyed. On the 18th day of June, 1888, there was an agreement made between Hawes and Dobbs, by which Hawes was to aid in the completion of the buildings upon the real estate, and to aid Dobbs in making the loans of money under his building contract with Niebuhr, by advancing for the account of Dobbs the sum of $5,500 to be used for that purpose.
    Dobbs agreed that Niebuhr would, as security for the $5,500 so advanced, execute and deliver to Hawes his bond and a mortgage upon the balance of the real estate owned by him ; that he would protect Hawes, and be responsible to him for the payment of the sum so advanced, with interest; that he would protect the interest of Hawes in the real estate conveyed to him, and the mortgage so to be given, and that he would not allow or further any foreclosure sale of the real estate under any mortgage thereon then owmed or controlled by him, or which thereafter might be owned or controlled by him, which would impair or bar the interests of Hawes either under the deed or mortgage, or divest his rights in the property. The $5,500 was advanced by Hawes in pursuance of that understanding, and used by Dobbs and credited to him as advanced under the provisions of his building contract with Niebuhr. In pursuance of the agreement Dobbs procured Niebuhr to execute a mortgage for $5,500 to Hawes, as arranged. In November, 1887, Dobbs procured his mother to take án assignment of one of the mortgages which were liens upon the property at the time of his conveyance to Niebuhr, and she paid therefor with her own money the sum of $14,000. Subsequently, in March, 1888, Dobbs caused an action to be commenced for the foreclosure of that mortgage in the name of his mother, the holder thereof, to which action all the persons interested in or having liens upon the real estate, including Hawes, were made defendants. Niebuhr appeared in the action and interposed a defense. The action proceeded to judgment of foreclosure and Niebuhr appealed from the judgment
    During the pendency of the appeal Dobbs procured Niebuhr to convey his interest in the real estate to his wife for the sum of $7,000, paid by her, and thereupon Niebuhr discontinued the appeal. Thereafter, sale was made in pursuance of the foreclosure judgment and the real estate was bid off by Dobbs for his wife, and she paid the consideration money. Thereafter she assigned her bid to the defendant, Bergmann, and the referee, who made the sale, executed the deed of the real estate to him. In March, 1888, Gilbert R Hawes conveyed all his interest in the premises, and assigned his bond and mortgage to the plaintiff, and also assigned to him all his interest under the alleged agreement with Dobbs for the protection of the deed and mortgage, as alleged in the complaint. The plaintiff, in his complaint, alleging these and other facts, prayed for relief that it be adjudged; (1) that the agreement between Hawes and Dobbs is binding on Bergmann; (2) that the deed from Niebuhr to the wife of Dobbs was solely for the benefit of Dobbs; (3) that the interest of Dobbs as mortgagee of the premises has merged in that of the owner of an undivided three-fourths of the premises; (4) that the liens of the deed and the mortgage of the plaintiff on the premises are superior in equity to the rights of any of the defendants in the premises; (5) that the plaintiff is the owner of an undivided one-fourth part of the premises, and that he has a good and valid lien on a portion of the premises described, to the extent of $5,500 and interest ; (6) that the plaintiff be allowed the costs and disbursements of the action; (7) that he have such other or further order, judgment or decree as to the court may seem just and equitable. The action was brought to trial at a special term, and the trial judge having found these facts dismissed the complaint on the ground that the plaintiff was not entitled to any equitable relief, and he made findings of law and facts, to which proper exceptions were taken on the part of the plaintiff. The judgment entered upon the findings of the trial term having been affirmed by the general term, the plaintiff has appealed to this court.

      Flamen B. Candler, for app’lt; John H. V. Arnold, for resp’ts.

       Affirming 44 St. Rep., 890.

   Earl, J.

We agree with the court below that the facts alleged in the complaint, proven upon the trial and found at the special term, do not make a case entitling the plaintiff to the equitable relief which he demands. The substance of the agreement was that the defendant, Dobbs, would protect the deed and mortgage given by Niebuhr to plaintiff’s assignor. At that time Dobbs did not own the real estate, and it does not appear that it was then contemplated, either by him or Hawes, that he would ever become the owner thereof. He did not charge any real estate by the agreement which he made. He simply entered into a personal agreement which he was bound to perform ; and the only grievance the plaintiff has against him is that.he did not perform it in that he did not protect the deed and mortgage, but, on the contrary, instigated and aided in the foreclosure of the mortgage by which the title has in the end been placed in the defendant Bergmann. It is impossible to perceive what right or interest the plaintiff has in the real estate. By a foreclosure which is regular and binding upon all the parties thereto, whatever interest he might otherwise have had as grantee and mortgagee in the premises has been cut off, and all that is left to him, growing out of the agreement made by his assignor with Dobbs, is the right to pursue Dobbs by a legal action, to recover the damages caused by a breach of that agreement. He did not make a case for any equitable relief, and, therefore the trial judge committed no error in dismissing his complaint.

This is not a case where the plaintiff is defeated because, while he had a perfect right of action for equitable relief, he had also a complete remedy at law. If his action had been of that nature, then within the cases of Grandin v. LeRoy, 2 Paige, 509; Hawley v. Cramer, 4 Cow., 717; Truscott v. King, 6 N. Y., 147; Town of Mentz v. Cook, 108 id., 504; 13 St. Rep., 845, and Ostrander v. Weber, 114 N. Y., 95; 22 St. Rep., 979, he would have been entitled to maintain his action for equitable relief because the defendants had not set up in their answer as a defense that he had a remedy at law. Here the plaintiff is defeated, not because he had a remedy at law, but because upon the facts alleged there was no ground whatever for equitable relief.

It cannot now be said that the plaintiff ought to have been awarded legal relief by way of damages, because in his complaint he prayed only for equitable relief, he brought his action to trial as an equitable action, and upon the trial demanded only equitable relief. He did not demand or ask for legal relief. Hnder such circumstances he cannot now complain that the action was not retained so as to award any legal relief to which he might be entitled for a breach of the agreement alleged in the complaint.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Annette B. W. Wetmore, Resp’t, v. William B. Wetmore, App’lt.

      (Court of Appeals,

      Filed March 21. 1893.)

    Appeal — Supreme court rule 41.
    Where an appellant fails to serve the printed copies of the appeal papers in accordance with the provisions of rule 41, the disposition of a motion to dismiss the appeal rests entirely in the discretion of the court helow.
    Motion to dismiss appeal.

      Flamen B. Candler, for motion; David May, opposed.

       See 49 St. Rep., 916.

   Per Curiam.

We think this appeal must be dismissed. The defendant was in default under rule 41 of the supreme court, because he had not served the printed copies of the.appeal papers in accordance with its provisions, and the appellant moved at the November general term, as authorized by the rule, to dismiss the appeal. The disposition of that motion rested entirely in the discretion of the court below. It could grant the motion unconditionally or deny it without prejudice to a renewal of it at a subsequent date, or impose any reasonable or proper terms as a condition of its denial, or postpone action upon it, or dispose of it in any one of many other ways which might be suggested. Neither party could, as a matter of right, demand that any particular determination of it should be made. The court dismissed the appeal absolutely, with ten dollars costs of the motion, and from the order of dismissal this appeal has been taken, which the respondent now seeks to dismiss. The appellant insiste that the order is appeal-able because it affects a substantial right and determines the action and prevents a final judgment from whichan appeal might be taken. But under subdivision 2 of § 190 of the Code, to render such an order appealable, it must be one which does not rest in the discretion of the court, and as it was purely discretionary with the general term what kind of an order it would make in the premises, it is clear that no appeal lies to this court.

It appears that a similar motion was made at the October general term and was granted, unless the defendant, within twenty days after the service of the order upon his attorneys, submitted himself to the jurisdiction of the court to be served with a certified copy of the judgment herein. The appellant insists that, within the time prescribed, he submitted himself to the jurisdiction of the court, and was personally served with a certified copy of the judgment, and thus literally complied with the condition of that order.

It may be so assumed, for the purposes of this motion, but if true it does not exempt the appellant from a further compliance with the requirement of rule forty-ona It was sufficient to excuse his default at the October term, but the rule was still operative, and if his failure to serve the printed papers on appeal continued, a motion could be made at a subsequent term to dismiss his appeal for that cause, to which, if made, a compliance with the condition in the order granted at the October term would not be a bar.

The appellant’s counsel states in his brief, in opposition to the present motion, that on April 23, 1892, a motion was made at the general term to dismiss the appeal from the judgment, on the ground that the defendant could not take an appeal therefrom, inasmuch as he had fled from the jurisdiction of the court and remains absent from the state of New York, and that upon the hearing of the motion an order was made granting the same and dismissing the appeal, with ten dollars costs, unless the defendant, within twenty days after the service of a copy of the order upon his attorneys, submitted himself to the jurisdiction of the supreme court, to be served with a certified copy of the judgment; and that an appeal was taken from that order to this court, which is still pending ; a motion to dismiss the same having been denied ou March 7, 1893. It is claimed that, so long as this order remained in force and unreversed, it operated as a dismissal of the appeal by the general term, as it was admitted that the condition contained in it had not been complied with ; and that, therefore, the general term could not subsequently entertain a motion, under rule forty-one, to dismiss an appeal not then pending in that court But the record upon this appeal does not disclose the facts in this respect upon which the appellant now relies. There is no reference to the order of April 23 in any of the papers upon which the order of dismissal at the November term was made, and we cannot consider it or its effect in determining the power of the court to make the subsequent order.

The motion must be granted, with costs.

All concur.


text:
    Esther Y. McCarthy, App’lt, v. Eugene McCarthy, Resp’t.

      (Court of Appeals,

      Filed March 21, 1893.)

    1. Divorce — Costs—Code Civ. Pro., § 1769.
    After the referee has reported, in favor of plaintiff in an action for divorce, and his report has been confirmed, the court has no power to entertain a motion for counsel fees and an extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.
    3. Same.
    If the judgment of divorce should he appealed from, then if on an application it should appear that in order to maintain and defend her right an allowance ought to be made, the court would he justified in granting one, and it might include previous expenses which it was necessary that plaintiff should pay in order that she might further maintain or prosecute her rights.
    Appeal from an order of the supreme court, general term, fourth department, denying plaintiff's motion for counsel fees and extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.

      Louis Marshall, for app’lt; T. K. Fuller, for resp’t.
   Gray, J.

This appeal is from an order of the general term, affirming an order which denied, for want of power in the court, the plaintiff’s motion “ for counsel fees and extra allowance of costs in addition to plaintiff’s taxable costs and disbursements.” The action was by a wife to obtain a divorce from her husband,. and when this motion was made the referee had reported in favor of the plaintiff, and his report had been confirmed. By his report the defendant was required to pay alimony to the plaintiff every year, commencing from the institution of the action. No motion had been previously made for alimony or allowances, and this motion upon the pleadings, evidence and proceedings had was made when the report had been confirmed and before judgment The question is whether under § 1769 of the Code of Civil Procedure such a motion could be entertained. That section provides that the court may “ during the pendency of the action,” from time to time, order “ the husband to ¡Day any sum or sums of money necessary to enable the wife to carry on or defend the action,” etc. In Beadleston v. Beadleston, 103 N. Y., 402; 3 St. Rep., 634, a motion was made by the defendant when the plaintiff moved for judgment on the report, that she have a further allowance to pay her expenses including counsel fees incurred, and it was held that the allowance which had been granted below was unauthorized. This section was there construed to confer the power only during the pendency of the action, and it was said “ the allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made, or solely to pay expenses already incurred.”

It is difficult to see how that case .is not to be regarded as a precise authority upon the present application. The appellant’s counsel seeks to make a distinction in that Mrs. Beadleston was defendant in that case, and, having been unsuccessful, should not be allowed to compel her husband to pay for her defense, unless it were shown that a payment was necessary to enable her to further carry on the action. This application is based upon the affidavit of one of the plaintiff’s attorneys, and shows that the counsel fees asked for represent what he has “ charged the plaintiff besides the disbursements, etc.” The allowance of such an item, which has reference to the past, within the Beadleston case, is not authorized by the Code. If, as it is hinted in the affidavit, the judgment of divorce should be appealed from, then, upon an application wherefrom that fact should appear, and it should also appear that, in order to maintain and defend her rights, an allowance ought to be made, the court would be justified in granting one. Upon such an application, if it should appear that, in previously carrying on her action, the plaintiff had incurred expense, the payment of which was essential to be made in order that she might further maintain or prosecute her rights under the judgment, it would be quite within both the letter and the spirit of the statute to comprehend in an allowance the unpaid item of the past. The language of this provision, however liberally we are inclined to construe it, must be given its due effect in authorizing the court to order an allowance only during the pendency of the action, and when it is “ necessary to enable the wife to carry on the action.” It is apparent in this case that the wife had conducted the litigation out of her own means, or upon credit, from its commencement to a point where the case was closed, and nothing remained but an entry of a judgment on the referee’s report

Although the action might, in a strict legal sense, be said to be still pending, it did not appear that the wife needed moneys to carry it on.

We think the orders below were right and should be affirmed, but without costs.

All concur.


author: Peckham, J.

text:
    John A. Nichols, Resp’t, v. The Scranton Steel Co., App'lt.

      (Court of Appeals,

      Filed March 21, 1893.)

    1 Contract — Breach—Amendment oe complaint.
    In an action upon a contract for the sale of iron which provided that payments should he made monthly for deliveries of preceding month, defendant, in its answer, set up a modification of the contract which provided that the shipments should be suspended for two months and that monthly settlements should be made at a certain sum per ton less than the contract price, unless the market price should advance above that sum; and then at current rates, and the question of what abatement, if any, should be made from market price to be settled by arbitration. Plaintiff was allowed to prove the deliveries of iion at the modified price and the receipt of notes at that rate, and the award of the arbitrator that nothing should be deducted from the contract price as mentioned in the original contract. And the referee allowed the complaints to be conformed to the proof at the end of the evidence. Held, that the referee had the power to grant the amendment, as the matter was set up by defendant in its answer, and it was in no way surprised.
    2. Same.
    The complaint, as amended, alleged that the words “market price” were inserted by mutual mistake for “ contract price,” which, by agreement, was corrected by consent of all parties, and evidence of this was given, and it was so found by the referee. Held, that this did not change the action into an equity action to reform a contract, but the referee took the contract as the parties had reformed it and admitted it to be, nor did it prove a different or separate cause of action.
    3. Same.
    The president of defendant was the officer with whom all the negotiations had been had which resulted in the negotiation of both contracts, and was its business manager, etc. Held, that he had the power to consent to the reformation of the contract.
    4. Same.
    The contract having been repudiated by defendant plaintiff was not compelled to deliver the balance of the iron before bringing his action.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff entered upon report of referee.

      Edward C. James and Hamilton Wallis, for app’lt; Henry P. Starbuck, for resp’t.

       Affirming 46 St. Rep., 68.

   Peckham, J.

This action was brought to recover damages said to have been sustained by the assignor of the plaintiff by reason of a refusal of the defendant to be further bound by the terms of a contract for the sale of 30,000 tons of pig-iron to it, and which it repudiated after a large amount of the iron contracted for had been delivered. The contract price was $23.50 per gross ton, and the market price had dropped since the execution of the contract to eighteen dollars per ton. The plaintiff demanded over a hundred thousand dollars damages. The contract was in writing, and was entered into December, 1889. It was as follows:

“ Philada., Dec. 20, 1889.
“ Sold to the Scranton Steel Co. for Account of Messrs.
Wm. R Hart & Co.:
“ Thirty thousand (30,000) tons of Bessemer pig iron, to be run of furnace as nearly as possible equal quantities Numbers 1, 2 and 3. For delivery, 1,000 tons in January, 2,000 tons in February, 2,000 tons in March, and balance in equal monthly proportions during the months of April, May, June, July, August, September and October, A. D. 1890, and deliverable f. o. b. cars, purchaser’s works, Scranton, Pa., at twenty-three and a half ($23.50) dollars per ton of 2,240 lbs. Settlements to be made in cash on the twenty-seventh (27th) of each month for the previous month’s shipment. The above-named iron to contain not over .10 phosphorus, and to be in other respects suitable for the Bessemer process.
“ (Signed) Charles W. Matthews,
Broker.
“ Accepted by the Scranton Steel Co.,
“W. W. Scranton,
President."

The defendant, in its answer, set up the fact of a modification of the above contract, It alleged full performance and denied repudiation on its part The modification was set forth at length in defendant’s answer and it is as follows:

“New York, July 1,1890.
“ Memorandum of understanding between Crane Iron Co. and W. R Hart & Co., of the first part, and Scranton Steel Co., of the second part.
First. At request of Scranton, Crane and Hart will suspend shipments for the next two months, with the exception of about 1,500 tons per month by Hart from Parryville.
Second. Scranton will give 30 and 60 days paper for amounts now due, but will anticipate if possible.
Third. Crane and Hart will resume shipments, but making monthly deliveries as light as possible, and, if necessary, not exceeding one-half of amounts specified in contracts, and settlements will be made at rate of eighteen dollars per ton, on account, from month to month, unless market price should advance above that figure, and then at current rates, such settlements to be taken on account, and balances due to be adjusted at termination of contract. But Hart and Crane Co. will accept, if desired, 4 mos. paper with privilege of one renewal, and question of what abatement, if any, should be made from market price to-be then settled between the parties, and if they fail to agree, to be left to the decision of John C. Bullett, Esq., who shall have power to decide according to what he thinks just and equitable between the parties.
“Crane Iron Co.,
“Sol. Dickson, President
“Wm. R Hart & Co.”

Upon the trial the plaintiff offered evidence, which was received ■under the objection of the defendant, showing deliveries of iron at the rates mentioned in the modification, and the receipt of notes at eighteen dollars per ton for all iron delivered up to January, 1891, and also showing the occurrence of the arbitration as provided for in the modified agreement, and the award of the arbitrator that nothing should be deducted from the contract price as mentioned in the original contract. This evidence was objected to by the defendant as not admissible under the complaint, which, as defendant alleged, showed the action was brought entirely upon the original contract of December, 1889. The evidence was received by the referee, and he then stated that an amendment of the complaint might be necessary, and leave was granted to plaintiff to move for an amendment at a later stage of the trial. An amendment conforming the complaint to the proof was subsequently permitted at the end of the evidence. It is now claimed that the referee had no power to grant this amendment

The record shows that the referee, before permitting the evidence to be received, which was offered upon this question, asked the counsel for the defendant if he was surprised by the offer of testimony or desired time in case the same was admitted or the complaint amended, and the counsel replied that he was not surprised and did not ask for time to prepare for the questions arising under the arbitration. The July contract having been set up by the defendant in its answer, and the defendant being at the time of trial not surprised but entirely rfeady to meet the questions arising under this arbitration, and the evidence in regard thereto and also upon the whole merits of the case having been fully given by both sides, it becomes obvious that the defendant has, in fact, had its day in court upon all the facts in the ■ case, and the objection it now makes to the pleading is the purest kind of technicality and should not prevail unless some well settled rule requires us to give it effect.

We think there is no such rule.

The defendant alleges that the amendment allowed by the referee introduced an entirely different and new cause of action, and changed the action from what was in the nature of an action at law into a suit in equity to reform a contract. This assertion on the part of defendant’s counsel requires the statement of one or two additional facts.

It will be seen that in the modification agreement made July, 1890,. where, towards the end thereof, provision is made for a determination of what abatement, if any, may be made to defendant, the term “market price” is used as the price upon which the question of abatement is to be settled.

The complaint,, as amended, contained an allegation that this term, “market price,” was inserted by mutual mistake instead of the term “contract price,” as intended by all parties, and that thereafter, on the 3d of February, 1891, the agreement was duly corrected by the consent of all parties by changing the words “ market price ” to “ contract price.” Evidence to support this allegation of mutual mistake, and a mutual agreement and consent to rectify it, was given on the trial, and the fact of such agreement was found by the referee.

The counsel for defendant is mistaken in his supposition that the amended complaint contains any prayer to reform the instrument, and the referee does not reform it, but takes the contract as the parties themselves had reformed it and as they admitted it to be. So there was no exercise of the powers of a court of equity to reform an instrument, and no application for its exercise was made by the amended complaint. The action remained as it had been, one at law. The simple question then arises whether in proving that the plaintiff’s assigiior had in all things complied with the terms of the modified contract, and that pursuant to its provisions an arbitration was had at which it was determined that no abatement should be made from the original contract price, the plaintiff was proving an entirely different cause of action from that which was set out in the complaint

■Under the amended complaint, the demand for judgment was substantially the same as in the original, and based upon the same contract price for the same amount of iron delivered, at the same ti mes, and for which payments had been made in the same amounts. There were, however, certain additional facts set up in the amended complaint, the effect of which would show that the July contract set up by defendant as a defense to the suit did in reality furnish no defense, but permitted the plaintiff to recover according to the provision of the contract of December, 1889. This proves no different and separate cause of action.

It is in truth an amplification of the original complaint and of the cause of action therein set forth, and an allegation of facts which go to show that the plaintiff is entitled by law to recover upon the cause of action first set up. There is no reason why such an amendment should not be permitted, and we think it is not in violation of the Code prohibiting on the trial amendments of a nature to substantially change the cause of action or defense.

Upon this question of pleading we are of opinion that no ground is presented for a new trial.

A second ground for a reversal is based upon the allegation thau there is no sufficient evidence upon which to base the conclusion of the referee that the parties to this contract ever reformed it or consented to the change of the terms thereof from “market” to “contract” price, as already stated, and that without such reformation no cause of action was proved. It is also maintained that if the president of the defendant did consent to this alteration of the contract, he had no power to thus bind the defendant The evidence, in our judgment, is ample upon which to base this finding of the referee. It is unnecessary to set it forth or to allude to it in detail. We have read it, and we think there is but one proper conclusion to draw from it.

As to the claim that the president had no power to alter the contract, we think the case shows a plain answer.

In the first place he was the officer with whom alone all the negotiations had been had which resulted in the execution of both contracts. The case shows he was in substance the managing and controlling man of the company defendant, and that he was present as the manager and representative of defendant on the occasion of the arbitration, and at which time the mistake was rectified, and he was clothed with all the powers a manager of the business and a representative of the company would be supposed to have. When the attention of the parties was drawn to the language of the contract, and when the claim was made that it was a mistake, and that in reality no such contract was ever made, the president and general manager and representative of the defendant acknowledges the fact, &nd consents to the change so that the truth may be set forth. This is not making a new contract, nor is it any modification of an old one. In truth there had never been any such contract entered into between the parties, and there was nothing but a consent that the actual contract that had been entered into should appear by a proper amendment to the writing which evidenced the contract. It was a matter within the knowledge of this officer of defendant who gave the consent, as it was he who negotiated and executed the contract itself which was to be reformed, and we have no doubt that in the light of all these facts he had the power to give the consent which the referee finds that he did give.

The defendant sets up as a third ground for a reversal of the judgment that the plaintiff’s assignor was himself in default upon the contract, and hence the plaintiff was in no position to enforce it or to recover damages for an alleged default of the defendant

It appears in evidence that after the execution of the agreement of July, 1890, the assignor of the plaintiff proceeded with the delivery of the iron and duly received the notes of the defendant therefor at the rate of eighteen dollars per ton up to the month of January, 1891. For that month there were delivered to the defendant some 640 tons and the defendant was bound to give its notes at eighteen dollars per ton therefor on the 27th of February. On the 3d of February, at the procurement of the defendant, as the referee finds and as the evidence tends to show, the arbitration provided for in the July agreement was commenced, although the contract was not then fully terminated. Before the arbitration was proceeded with, the July agreement was, by mutual consent of the parties, altered so as to read “contract ” instead of “market ” price, as already stated. On the 10th of February the arbitrator made his award, in which he refused to grant any abatement to the defendant from the contract price as contained in the original contract of December, 1889, for $23.50 per ton.

In the meantime the plaintiff’s assignor was engaged in making deliveries of the iron for the month of February, and delivered over seventeen hundred tons during that month. The 27th of February was the day when the notes were to be given by defendant for the January deliveries. A copy of the arbitrator’s award had been served upon the defendant before the 27th, and, as appears, it was the cause of very great dissatisfaction on the part of the president of the defendant The notes for the January deliveries of iron were not given and the omission caused instant efforts on the part of the plaintiff’s assignor to discover the reason and to get the notes. While these efforts were on foot, and on the 7th and 9th of March, the plaintiff’s assignor delivered some eighty tons of iron to defendant and then ceased. There then remained some 4,800 tons of iron to be delivered under the contract in order to fill the amount of 30,000 tons contracted to be sold.

The assignor of the plaintiff, having failed to obtain any satisfaction for the neglect of the defendant to send its notes for the January deliveries of iron, employed an agent who on the 4th of March called upon the officers of the defendant at Scranton and asked both the secretary and president why the notes were not sent The answer of the latter was that there would be no more remittances until Hart & Co. were willing to come to some reasonable settlement. He continued by discussing the award of the arbitrator and said it was entirely out of the question to suppose that he was going to abide by any such decision as that. He said something about what he had lost by the contract and that it was entirely out of the question that he was going to lose so much as would be contemplated in this decision of the arbitrator, and that the company would not trouble itself to give any more notes. Subsequent to that interview and on the 6th of March the plaintiff’s assignor wrote a letter to defendant in which he said that, failing to receive remittances, he would understand defendant as declining to carry out its agreement. Again, about the 11th of March, he wrote in about the same tenor. In the view taken of this subject we do not lay any stress upon either letter as rendering it necessary for defendant’s agents to answer it at the peril of a construction being placed upon their conduct such as the writer chose to state. The defendant contends upon these facts that the contract in question in this case was divisible in its nature and character and that a refusal to pay or settle for the iron delivered in any one month was not a justification for the other party to refuse to deliver the balance of the iron called for by the contract And the claim is made that there was nothing proved other than a simple refusal of defendant to pay or settle for the January iron that had already been delivered. Without stopping to inquire as to the correctness of the legal proposition maintained by defendant as to the divisibility of this particular contract and the liability of the vendor to still deliver the iron after a mere refusal to pay or settle for that which had in some previous month been delivered, we are of the opinion that the defendant’s counsel is in error in his characterization of the purport and result of the interview between plaintiff’s agent and the officers of the defendant The award of the arbitrator had taken from the defendant all right to any reduction from the contract price of the iron, and the defendant was, therefore, liable eventually to pay, by reason of such decision, to the plaintiff’s assignor the sum of $5.50 on every ton of iron which had already been delivered, and $23.50 on every ton which was thereafter to be delivered.

The president of the defendant not only says that the defendant will give no more notes; which language naturally construed would not be limited to a refusal to give notes for the January deliveries only; but at the same time it is plainly, definitely and unambiguously stated that the defendant would not abide by the arbitration and that it was out of the question that it was going to lose by this contract so much as would be contemplated in that decision. The decision of the arbitrator relegated defendant to a liability to be measured by its original contract of December, 1889, not only for all iron already delivered, but for all that was to be delivered in the future, and hence the statement of the president was a plain declaration that the defendant would not abide by a decision which compelled it to live up to the terms of that contract both as to the past and for the future. If this did not amount to a repudiation of the obligations of the contract, it is difficult to see what would. It absolutely refuses to give any more notes for any purpose until the other parties make some reasonable settlement, that is, until they assent to some qurtailment of their legal rights under the contract, and it is a plain and full refusal to abide by the terms of the contract under which the defendant was then held. This, of course, included a refusal to pay the contract price for the iron yet to be delivered, as well as for that already delivered. The assignor of the plaintiff had the right upon such refusal and announcement to regard the contract as repudiated by the defendant and to claim that it was not a mere refusal to give notes for the January deliveries, and under such circumstances there was no necessity to tender the deliveries of the balance of the iron. The defendant's refusal to be further bound by the terms of the contract, and the open and plain repudiation thereof by it, would prevent it from insisting that notwithstanding such refusal and repudiation the other parties must still remain held by the contract, and that unless they should still continue and go on and make deliveries of iron, they would be in the law considered as in default. The acts of the defendant were such as to justify the referee in his finding that the defendant had refused to be further bound by its contract and that it had repudiated its-obligations under it

Some criticism is made upon the fact that, subsequent to the commencement of the action herein, it appears that plaintiff was willing to carry out the contract and deliver to an assignee of the defendant the balance of the iron, amounting to 4,800 tons, for $18 a ton, providing it could be done without prejudice to the claim against the defendant. It is claimed that in some of the letters the contract is treated as still subsisting. We do not think there is anything therein which necessarily changes the position of thé plaintiff in this action, and we are of the opinion that under the cases in this court relating to the repudiation of executory contracts, the plaintiff proved sufficient in this case to entitle him to recover some damages for the breach of the contract. Burtis v. Thompson, 42 N. Y., 246; Howard v. Daly, 61 id., 362, 374; Freer v. Denton, id., 492, 496; Ferris v. Spooner, 102 id., 10; Windmuller v. Pope, 107 id., 674; 12 St. Rep., 292.

Another and somewhat similar ground for a reversal is argued by the counsel for defendant, which is that the action was prematurely brought The defendant’s counsel seeks to maintain this proposition by substantially the same argument advanced to support the claim that the plaintiff was in default for a nondelivery of the balance of the iron. He contends here that the plaintiff was bound to deliver the balance of the iron even if the defendant refused to pay for the monthly deliveries, and in any event he urges that no cause of action accrued until subsequent to the month when the last deliveries of the iron under the contracts would have been made.

If a contract of this nature can be repudiated by words and action, we are quite clear the defendant accomplished that result We have already expressed our views upon substantially this proposition, and need not now repeat them.

We do not think the action was-prematurely brought

But assuming the action to have been well brought as to part of the plaintiff’s recovery, the defendant still insists that it was error to include therein the moneys for the February and March deliveries of iron, because by the contract payments were not* due thereon until March 27th and April 27th, respectively, and then only by notes payable in four months, and the defendant requested a finding that, at the time of the commencement of the action, nothing was due or payable from it to plaintiff for or on account of the iron delivered in the months of February and March, 1891.

Assuming the contract to have been lived up to by all parties, this request would be correct. And also, on that assumption, the deliveries of the 4,800 tons of iron yet remaining undelivered would not have been due, and, when delivered according to the terms of the contract, the defendant would not be liable to pay for the iron delivered in any one month until the 27tli day of the following month, and then only by giving notes at four months.

We hold, however, that by the repudiation the plaintiff is absolved from the further delivery of iron under the contract, and that an action to recover damages arising from defendant’s refusal to receive and pay for such iron may be at once commenced. We do not think that the fact that some iron had been delivered, the time for the payment of which had not, by the terms of the contract, arrived when the suit was commenced, makes any difference.

If it were not for a repudiation of the contract nothing could be recovered as damages for the iron not delivered, because, by the terms of the contract, such delivery and payment would not be due, but when the defendant does repudiate the contract and refuses on its part to fulfil its terms, it cannot be heard to say that the other party must himself be bound by it, and must await the expiration of the term of credit provided for by it before any action can be maintained under it. The plaintiff does not recover the moneys as being the contract price, strictly and technically, but as damages for the breach of the contract by the defendant. And those damages would be the present worth of the moneys payable under the contract at the time therein provided. Thus, if the moneys were to be due at the end of four months from the time when the iron was, by the terms of the contract, to be delivered, the measure of damages would be, in such case, the present worth of an obligation to pay money due at such a certain time.

It is not intimated that in the bald case of a party bound to pay a promissory note which rests in the hands of the payee, but which is not yet due, such note can be made due by any notice of the maker that he does not intend to pay it when it matures. We decide simply this case, where there are material provisions and obligations interdependent. In such case, and where one party is bound, from time to time, as expressed, to deliver part of an aggregate and specified amount of property to another, who is to pay for each parcel delivered at a certain time and in a certain way, in such case a refusal to be further bound by the terms of the contract, and a refusal to give the notes already demandable for a portion of the property that has been delivered, and a refusal to give any more notes at any time or for any purpose in the future, or to pay moneys at any time, which are eventually to be paid under the contract, ail this constitutes a breach of the contract as a whole, and gives a present right of action against such party to recover damages which the other may sustain by reason of this refusal. We refer to the cases above cited as a justification for the rule, and we think the principle decided by them, and in the cases therein cited, justifies and demands this holding.

The exceptions taken by the defendant to the admission of evidence and argued here have been carefully reviewed, and they constitute, as we think, no reason for a reversal of the judgment.

Upon the whole case we think the judgment is right, and that it should be affirmed, with costs.

All concur.


text:
    The People, App’lts, v. Charles H. Laurence, Resp't.

      (Court of Appeals,

      Filed March 24, 1893.)

    Larceny — Indictment.
    An indictment for grand larceny in the first degree charged that the defendant obtained possession of two street cars by certain false pretenses and representations, and that possession was thus obtained with the intent to appropriate them to his own use, and that “ he sold the said two cars and appropriated the proceeds thereof to his own use and benefit.” Held, sufficient to authorize the conviction of the defendant for the crime of larceny.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment of the court of sessions of Niagara county, convicting defendant of the crime of grand larceny.
    The defendant was brought to trial upon the following indictment:
    “ The grand jury of the county of Niagara, by this indictment, accuses Charles H. Laurence of the crime of grand larceny in the first degree, committed as follows :
    “ That the said Charles H. Laurence, on or about the 10th day of August, in the year of our Lord, one thousand eight hundred and ninety-one, at the city of Lockport, within the county of Niagara, with force and arms, with intent to deprive and defraud the Lockport Street Railroad Company, a corporation duly organized and existing under and by virtue of the laws of the state of New York, of the proper goods and chattels hereinafter mentioned, and of the use and benefit thereof, and to appropriate the same to the use and benefit of him, the said Charles H. Laurence, did then and there feloniously, falsely and fraudulently pretend and represent to the said Lockport Street Railroad Company, if the said Lockport Street Railroad Company would permit him, the said Charles H. Laurence, to ship to Buffalo two of the horse cars numbered respectively seven (7) and eight (8) of the said Lockport Street Railroad Company, that he, the said Charles H. Laurence, would have the said two horse cars so transformed that they might be run by electricity as a motive power instead of by horse power and return the said two cars so transformed to the barn of the said Lockport Street Railroad Company in Lockport, with all possible speed, and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company before the 1st of January, 1892, and the said Lockport Street Railroad Company, then and there believing the said false pretenses and representations so made as aforesaid by the said Charles H. Laurence, and being deceived thereby, was induced by reason of the false pretenses and representations so made as aforesaid to deliver, and did then and there deliver to the said Charles H. Laurence the said two horse cars, numbered respectively seven (7) and eight (8) of the said Lockport Street Railroad Company, of the proper goods, chattels and personal property of the said Lockport Street Railroad Company, and the said Charles H. Laurence did then and there feloniously receive and obtain the said proper goods, chattels and personal property of the said Lockport Street Railroad Company by means of the false pretenses and representations as aforesaid, with intent to deprive and defraud the said Lock-port Street Railroad Company, feloniously, and of the use and benefit thereof and to appropriate the same to his own use.
    Whereas, in truth and fact, the said Charles H. Laurence did not then, nor at any time, ship to Buffalo the said two horse cars, numbered respectively seven (7) and eight (8), to be transformed so that they might be run by electricity as a motive power instead of by horse power, and did not intend to have the said two horse cars so transformed, and did not return and intend to return the said two horse cars so transformed to the barn of the said Lock-port Street Railroad Company, in the said city of Lockport, with all possible speed, and fit and ready to be used upon the tracks of the said Lockport Street Railroad Company before the first day of January, 1892, and has never since returned the said cars to the Lockport Street Railroad Company, but sold the said two horse cars and appropriated the proceeds thereof to his own use and benefit.
    “ And, whereas, in truth and in fact, the pretenses and representations so made, as aforesaid, by the said Charles H. Laurence, to the said Lockport Street Railroad Company, were then and there in all respects utterly false and untrue, as he, the said Charles H. Laurence, at the time of making the same, then and there, well knew.
    “ And the said Charles H. Laurence, on the day and in the year aforesaid, at the city of Lockport, within the said county of Niagara, aforesaid, in the manner and form aforesaid, and by the means aforesaid, obtained from the possession of the owner thereof, the said Lockport Street Railroad Company, the said two horse cars, numbered respectively seven (7) and eight (8), of the worth and value of $375 each car, with intent to deprive and defraud the true owner, the said Lockport Street Railroad Company, of its property, and of the use ana benefit thereof, and to appropriate to the use of him, the said Charles H. Laurence; and the said two horse cars, he, the said Charles H. Laurence, from the possession of the true owners thereof, the said Lockport Street Railroad Company, by means of the false pretenses and representations so made as aforesaid, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity. P. F. King,
    “ District Attorney of Niagara County.”
    The defendant was convicted of larceny, and upon appeal to the general term the court reversed his conviction, and directed his discharge. The district attorney then brought this appeal.

      P. F. King, dist. att’y, for app’lts; Richard Crowley, for resp’t.

       Reversing 50 St. Rep., 247.

   Earl, J.

In the early history of English jurisprudence a prisoner came to his trial under great disadvantages. He was not permitted to have counsel, or witnesses, or a copy of the indictment, and hence very technical rules were evolved for the construction of indictments and the conduct of the trial, and thus a prisoner was now and then enabled to make a successful defense. But for many years more humane views of the condition and rights of persons charged with crime have come to prevail, and now a person indicted proceeds to his trial under greater advantages than he would possess if he were defending a civil action. Hence, the technical rules which in ancient times frequently served a useful purpose have been greatly relaxed, indeed, almost entirely abrogated. By our Code of Criminal Procedure all forms of pleadings in criminal actions before existing were abolished, and the sole requisite of an indictment, besides the formal parts, is that it shall contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” Code Grim. Pro., §§ 273, 275. And it is declared that the indictment is sufficient if the act or omission charged as the crime is plainly and concisely set forth and stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the rights of the case. Section 284. To sweep away all mere technicalities it is provided in § 684, that “ neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right,” and, then, in § 542 it is provided that after hearing the appeal from a judgment of conviction “ the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

In all criminal proceedings the People, as well as the defendants, have rights, and the foregoing salutary rules should be fairly enforced and administered, so as to foster the public policy which they embody, and to serve the ends of criminal justice.

Larceny is defined in § 528 of the Penal Code so as to include not only that ofíense as constituted at common law and under the Revised Statutes, but also embezzlement, obtaining property by false pretenses and the felonious breach of a trust. To constitute larceny it is not needful that the property stolen should have been taken from the possession of the owner by a trespass; but if a person obtains possession of property from the owner for a special purpose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to bis own use, and he subsequently does appropriate it to his own use, and not to the special purpose for which he received it, he is guilty of larceny. And so it has repeatedly been held. Smith v. People, 53 N. Y., 111; Loomis v. People, 67 id., 322; People v. Morse, 99 id., 662. In such a case it is essential for the People to show not only that the person obtained possession of the property in that way, but that he did it animo furandi, with the intention at the time of subsequently appropriating it to his own use.

The People do not claim that the indictment shows a larceny by obtaining property by false pretenses, because the pretenses were in their nature promissory. But they claim that by certain false pretenses the defendant, intending at the time to appropriate the two cars to his own use, obtained possession of them from the owner for a special purpose, and that he did subsequently convert and appropriate them to his own use, and thus committed larceny. There can be no doubt that the facts thus claimed constitute larceny. The question for us to determine now is whether the indictment charges the crime of larceny in compliance with the requirements of the Code of Criminal Procedure? It would have been sufficient if the indictment, without setting forth the false pretenses, had alleged the commission of the crime of larceny in the form formerly used in common-law indictments. And such was the form of the indictments in the cases above cited. The crime being properly charged in such an indictment, the facts constituting it could be proved upon the trial. People v. Dumar, 106 N. Y., 502; 11 St. Rep., 19.

A careful reading of this indictment leaves no doubt upon our minds that it does state the act constituting the crime. It charges that the defendant made the false representations and pretenses to obtain the possession of the oars from the owner for the special purpose alleged, with the intent at the time feloniously to deprive the owner of the cars and to appropriate them to his own use, and that after thus obtaining them he did appropriate them to his own use, and that by means of the false pretenses and representations alleged he did feloniously steal, take and carry away the two cars. These averments contained every element requisite to constitute the crime of larceny. In the opinion pronounced at the general term it is intimated that the indictment would have been good “if it anywhere charged the defendant with obtaining possession of the property by means of the alleged false pretenses, and afterward, with felonious intent, appropriating it to his own use.”. It is very plain that the indictment does so charge. It is further stated in the opinion as follows : “ There is the charge that the defendant obtained possession of the property by the false pretenses and representations alleged ; but this is coupled only with the charge that possession was thus obtained with the intent to appropriate it to his own use, and there is nowhere the allegation that after so obtaining the possession he did actually so appropriate it” The learned general term must have been under some misapprehension, because the indictment plainly charges that after the defendant by the false pretenses and representations alleged, obtained the possession of the cars, “he sold the said two cars and appropriated the proceeds thereof to his own use and benefit.” It is, therefore, impossible, we think, to say that the crime of larceny is not found in the language used in the indictment

It is not a legal ground of attack upon this indictment that it contains more than was necessary under the provisions of the Code. It has always been the rule that surplusage no more vitiates an indictment than a pleading in a civil action, Lohman v. People, 1 N. Y., 379; Dawson v. People, 25 id., 399. While it was unnecessary for the People to set forth in the indictment the pretenses by which the defendant obtained possession of the property, the allegations in reference thereto instead of being harmful must have been beneficial to him, as they enabled him to know before the trial the precise facts upon which the People relied to prove the larceny. The indictment contains a plain statement of the acts constituting the crime without any repetition, and while it is not as concise as it might have been, yet so long as it is not so prolix as in any way to prejudice the defendant in making his defense, he cannot urge the prolixity as a ground for the reversal of conviction.

Wc are, therefore, of opinion that this indictment, tested by the rules prescribed in the Code of Criminal Procedure, or by those which previously existed, was sufficient to authorize the conviction of the defendant for the crime of larceny, and that the general term erred in reversing the conviction and discharging the defendant on the ground of the insufficiency of the indictment.

But it does not, however, follow that we should reverse the judgment of the general term and affirm the conviction. We think there was some evidence for the consideration of the jury tending to establish the crime charged. We express no opinion as to the weight of the evidence, as that is not within the province of this court. The defendant had the right to have his case reviewed upon the evidence, at the general term, and that court, in the exercise of its discretion, could grant the defendant a new trial if it believed that the conviction was against the weight of evidencé, or that justice required a new trial.

To the end, therefore, that the general term may exercise its discretion upon the evidence, its judgment should be reversed and the case remanded to that court for a further hearing.

All concur.


author: Van Brunt, P. J. O’Brien, J. Barrett, J.

text:
    Charles E. Hart, by Guardian, Resp't, v. The Delaware, Lackawanna & Western Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Negligence — Contributory—-Charge.
    Plaintiff was employed on a float used in the transfer of cars between points in New York harbor, which was taken one night after dark to defendant’s slip in Hoboken to receive some freight cars. There was anotke float in the slip, which the tug had first to remove, and as that was being fastened at the month of the slip, the one plaintiff was on ran in and reached the bridge, when it slowed and plaintiff’s foot was caught and injured by the keys or latches which projected over the float to fasten it. Held, that it was error to refuse to charge, on request, that “ the lack of the power to see, owing to the darkness, as the plaintiff alleges, must be taken into account by the jury, and the conduct of the plaintiff, so hindered and embarrassed by the fact, must be considered, and he must satisfy the jury that his action, in the peculiar situation in which he found himself, was such as a reasonable, prudent man, under like circumstances, would have observed;” and that, “if, as the plaintiff claims, it was dark, so that he was unable to observe or discover the projecting latches, and the danger to which he was exposed from them, it was his duty to be more vigilant and careful, and to exercise a higher degree of care to avoid injury or exposure, than if it had been daylight, or if, by the use of his sense of sight, he could have discovered the condition of the latches, and his liability to injury therefrom.”
    Appeal from judgment entered on verdict, and from order denying motion for new trial

      H. Odell, for app’lt; T. H. Kitchen, for resp’t.
   Van Brunt, P. J.

On the loth of May, 1890, the plaintiff was employed on a float belonging to the N. Y., N. H. & H. R’y Co., used in the transfer of cars from point to point in and about the harbor of New York. In the evening of that day, between eight and nine o’clock, the float was taken by a tug to one of the defendant’s slips in Hoboken, to receive some freight cars. This float was about 225 feet long and thirty feet wide. The slip was about forty-two feet wide, and on either side was a rack. At the inner edge of the slip was a bridge about forty feet six inches wide, with two railroad tracks upon it. This bridge was constructed like a ferry bridge, the river end rising and falling with the tide. At this end were four heavy iron keys, which were used for the purpose of making floats fast, so that cars could be run on the floats. There were toggle boxes on the floats for these keys to enter into to make a straight line of the tracks. When a float comes up to the bridge, these keys are handled by a ratchet bar, because they are so heavy that they have to be used by a bar, and cannot be shoved in by hand. They weigh eight or nine hundred pounds, and may be projected over the edge of the bridge, and it takes eight or ten minutes to draw the keys back. The night in question was very foggy ; so dark, as the plaintiff says, “ that you couldn’t see over thirty feet straight ahead.”

When the tug with the New Haven float arrived at the defendant’s slip there was a Star in float in the slip, fastened to the bridge by ropes or hawsers. The tug whistled as it approached the bridge and the defendant’s bridgeman called out that if they wanted to get into the slip they would have to pull the Starin float out. No notice had been given of the coming of the New Haven float. Thereupon the tug made fast to the float and took it out of the slip, the bridgeman having first loosened and detached the ropes. It was not necessary to draw back the keys to release the float. The Starin float having been detached from the bridge, the bridgeman took one end of the hawser, the other end being made fast to the float, climbed up on the south rack, walked along the rack as the float made off and, with the assistance of a man put on the float by the captain of the tug, secured the float at the mouth of the slip. This was necessary to be done or the float' which was pulled out would float away with the tide. Before the bridgeman had time to do this work and return to his position upon the bridge, and before any notice was given that the slip was ready for occupancy, the New Haven float was shoved into the slip. The plaintiff was standing by the bow of the float ready to take the bridge line. Two lamps were burning, one inside and one outside of a little house on the float, about five or six feet from the bow, which cast their light ahead over the bow. When the float touched the bridge the defendant’s night car inspector was standing on the bridge with a torch in his hand, which made considerable blaze. The plaintiff took no means whatever to see if there was any danger in approaching the bridge. Shortly after the float struck the bridge it slowed an inch or two and jammed the plaintiff’s foot between the key and the rail on the starboard side. There was some evidence tending to show that the plaintiff slipped and got in this position, but this was contradicted by the plaintiff.

Upon this evidence the jury rendered a verdict in favor of the plaintiff for $>15,000, and from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is taken.

Upon the facts developed in this case, it may be somewhat difficult to see precisely where any negligence on defendant’s part has been established. The persons managing the tug and the New Haven float must have known that these keys could not have been drawn back, because they were familiar with the locality, and kn,ew that it took considerable time to draw them in, and that the bridgeman whose duty it was to do this was engaged in fastening the Starin float which was taken out of the slip for their accommodation. Without waiting for the preparation of the bridge to receive their float, it was shoved in for the purpose of being made fast, and the accident happened.

There was no negligence upon the part of the defendants, or of their employee in attempting to secure the float which had been taken out of the slip to accommodate the float upon which the plaintiff was. It was conceded by the plaintiff that, for the purposes of the withdrawal of the float, the taking in of the keys was not at all necessary, and they knew that the keys had not been taken in, because of the rapidity with which the Starin float was removed.

Now, under these circumstances, can it be held to be negligence upon the part of this employee not to have done two important things at the same time. It appears from the evidence that this Hew Haven float was not expected. It came there without warning, in this irregular manner, and entered the slip manifestly hurriedly in order to serve its own purposes.

But, furthermore, there seems to have been error committed in the refusal of the court to charge as requested by the defendants. The court was requested to charge the jury that “ The lack of the power to see, owing to the darkness, as the plaintiff alleges, must be taken into account by the jury, and the conduct of the plaintiff, so hindered and embarrassed by the fact, must be considered, and he must satisfy the jury, by proof, that his action in the peculiar situation in which he found himself was such as a reasonably prudent man, under like circumstances, would have observed.”

And also that: “ If, as the plaintiff claims, it was dark, so that he was unable to observe or discover the projecting latches, and the dangers to which he was exposed from them, it was his duty to be more vigilant and careful, and to exercise a higher degree of care to avoid injury or exposure than if it had been daylight, or if, by the use of his sense of sight, he could have discovered the condition of the latches and his liability to injury therefrom.”

These requests the court refused, other than he had charged. We have searched the charge in vain to find any explanation to the jury as to what constituted negligence upon the part of the defendant, or contributory negligence upon the part of the plaintiff, or as to what his duty was in the circumstances under which he was placed. The charge of the court was simply of abstract propositions — that it was incumbent upon the p'aintiff to satisfy the jury, by a reasonable preponderance of proof, that the railroad company was negligent, and, also, that he himself was free from any negligence which contributed to this most unfortunate and serious injury. And after reviewing, in a general way, the facts, the court say: “ The defendant corporation takes the further position, involving the second legal proposition to which the court directed your attention, that the plaintiff himself was guilty of negligence which contributed to the injury,” and he directed the jury that if it appeared to them, from the testimony, that he was guilty of negligence, he was of course precluded from a recovery. But he gave no instructions whatever to the jury as to what, under the circumstances, constituted contributory negligence, nor in any way intimated to them how the degree of care required of a party is affected by circumstances, or how his duty to take precautions to avoid injury is increased or lessened by the circumstances in which he is placed. It has become an axiom that what is reasonable care must be determined, in all cases, by the situation and knowledge of the party and all the attendant circumstances, and must be such as prudent persons exercise when contemplating the danger that might be encountered. How, in the case at bar, the plaintiff knew of the existence of those keys, and must have known that they were extending from the bridge, because the bridgeman, he knew, had not time to draw them in before the float entered the slip. In any event, he knew that they were there, and yet he took no precautions whatever to protect himself from any injury which might happen ; and the jury were left as much in the dark as to what the plaintiff’s duty was as the plaintiff claims to have been on the night of the unfortunate accident

This, we think, was error. The defendant had a right to have the jury instructed as to what constituted contributory negligence, and as to what care the plaintiff was bound to exercise in the situation in which he was placed, and that he could not be permitted to be stumbling along in the dark without paying any attention to his surroundings or his personal safety, and then claim that he had used reasonable care under the circumstances when the injury had happened from his own neglect to look after his own safety.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event

O’Brien, J.

I concur in the result, because of the errors assigned and the reasons given in his opinion by the presiding justice relating to the refusal of the trial judge to charge certain requests made by the defendant. 1 do not, however, assent to his view that the facts here presented did not tend to establish negligence on the part of the defendant The plaintiff’s testimony presented a question which should have been submitted to the jury, because it made out a prima fade case of negligence on the part of the defendant, and freedom from contributory negligence on the part of the plaintiff.

It is true the. jury, upon such evidence, might be at liberty to conclude in favor of the plaintiff or the defendant, but it is only by resolving every inference to be drawn from the facts most favorably to the defendant that it can be concluded that the burden placed on the plaintiff was not sustained. The plaintiff had a right to assume that the defendant would properly discharge the duty of keeping the bridge and its appliances in such a condition that the float could safely approach them, even upon a dark night; and the question of whether failure or neglect to discharge this duty by permitting the keys to project from the bridge, which would concededly be negligent unless explained, was, in the light of the circumstances presented to explain such negligence, peculiarly a question of fact It is true that it was competent for the defendant to show the circumstances under which its employee allowed these keys to project. But such explanation would not, in my opinion, change the situation of still leaving the question of negligence one for the jury upon all the testimony.

Were it not, therefore, for the refusal to charge the requests to which the defendant was entitled, I should have been in favor of affirming the judgment; but, for the reasons assigned, I concur in the result

Barrett, J.

I concur because of the refusal to charge as requested, but I express no opinion upon the facts as to the questions of negligence and contributory negligence.


author: Van Brunt, P. J.

text:
    Isaac H. Bailey, Assignee, Pl’ff, v. Daniel Drew Chamberlain et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Appeal — Interlocutory decree.
    Where an interlocutory decree is entered in favor of plaintiff, and thereafter a final decree in favor of defendant, the former decree will not he reviewed on appeal therefrom by defendant, he not having been aggrieved thereby.
    3. Evidence — Weight op.
    Testimony of a witness, who pretended to have a very vivid recollection of words used in conversations had about twenty years before, in which he had no personal interest, and contradicted by an order written by himself at the time, should be given little weight, and a contrary finding is proper.
    Appeals from a decree of the special term, in respect of certain securities assigned by Daniel Drew to his assignee in bankruptcy.

      C. C. & S. F. Prentiss (Geo. W. Cotterill, of counsel), for pl’ff; McMahon & Handley (Denis McMahon, of counsel), for def'ts.
   Van Brunt, P. J.

We do not understand precisely the theory as to the practice upon which these decrees were entered. A judgment having been granted in favor of the plaintiff by the original decree, necessarily the plea of the statute of limitations was overruled; and to make an express adjudication upon that point seems to be unnecessary, and improper practice, which is apparent from the result of this action, as it appears that, notwithstanding the plaintiff has succeeded upon the preliminary question, yet he was defeated in the final result, and it was immaterial what the court decided in respect to the statute of limitations; and, as a party can only appeal where he is aggrieved, it is difficult to see why the court should be called upon to consider moot questions.

This action was brought by the plaintiff as assignee in bankruptcy of one Daniel Drew. After many immaterial allegations, the complaint alleged that some time prior to March, 1876, the said Drew made certain promissory notes or obligations, whereby he promised to pay to the defendant Chamberlain the sum of $118,000, or thereabouts, which notes or obligations had matured and become payable before the commencement of this action; and that in or about the month of October, 1873, the said Drew transferred and delivered certain bonds or securities, of the par value of $168,000, and then of the actual market value of $118,000, to said Chamberlain, as collateral security, and not otherwise, for the payment of said promissory notes or obligations. Then followed certain allegations justifying the making of the Farmers’ Loan & Trust Company a party, and an allegation that said bonds and securities, or the proceeds thereof, were still in the possession or under the control of said Chamberlain, except the portion thereof transferred to the Farmers’ Loan & Trust Company ; and judgment was prayed that said Chamberlain render to the plaintiff, as assignee as aforesaid, a full and true account of all and singular the bonds and securities received by him from said Drew as collateral security as aforesaid, and of the proceeds and avails of the same, and that sufficient of said bonds and securities to pay any sum which might be found due on said promissory notes or obligations be sold, and the balance thereof be transferred and delivered to the plaintiff as assignee. The defendant answered, in substance, that the note for $118,000, mentioned in the complaint, was given on the 4th of April, 1872, on a settlement of transactions between said Drew and said defendant, which settlement was for a balance due on a previous note of $100,000, and the interest due thereon, and a $30,000 loan, and the interest due thereon, amounting in all to about $175,000, in settlement of which said Drew turned over to the defendant, by absolute transfer, eighty bonds of the Albany & Susquehanna Railway Com.pany, and gave the note of $118,000; and that, subsequent to said settlement, said Drew borrowed of the defendant said eighty bonds, and used the same for his own purposes, so that in 1872 he owed the defendant the sum of $118,000, and interest accruing thereon, and also the actual value of said eighty bonds loaned to him as aforesaid, the said value in 1872 being about eighty to eighty-five per cent of the par value; and that said Drew, being so indebted, transferred the securities mentioned in the complaint to the defendant in payment of such indebtedness, and not as collateral security; and that, since such transfer, the defendant has owned and held the securities and dealt with the same as his own property. The defendant also set up the six and ten years statute of limitations, and also the two years statute created by the bankruptcy act.

The learned court below held that the statute of limitations did not apply, and that these securities were held as collateral security, .not only for the $118,000 note and the eighty Albany & Susquehanna bonds, but also for the indebtedness of $30,000 ; and an interlocutory judgment was entered to this effect; and it was referred to a referee to ascertain, determine and report to this court the amounts received by Chamberlain as interest or income on said securities, and for all payments received by him with reference to and interest upon said promissory notes and eighty bonds and said $30,000 loan. The decree further provided that, in case it should be found that there was due to the defendant, Chamberlain, an amount greater than the value of the securities, he should specify that in his report, and the data and method by which he arrived at it. The referee found that the amount due to Chamberlain in excess of the value 'of the securities in dispute amounted to $141,000. Thereupon final judgment was entered in favor of the defendants, and these appeals are taken from both the interlocutory and final judgments.

■ In view of the final result, it is not at all necessary to discuss the statute of limitations, as' it is entirely immaterial whether it applied or not; and even if the court below was erroneous in its rulings in respect thereto, which this court does not undertake to determine, the defendant has not been aggrieved thereby. We have read with reasonable care and attention the evidence which has been introduced upon the trial of this action, and have also considered the arguments in support of the proposition which has "been urged upon this court, that there was no indebtedness of $30,000, nor was the assignor of the plaintiff in any way responsible to Chamberlain for the eighty Albany & Susquehanna bonds; and we see no reason to differ from the conclusion arrived at by the court below, except as to the indebtedness of $30,000. We find no evidence to support the conclusion of the learned court in respect to that item. No such claim is presented by the pleadings.

The defendant Chamberlain, in his answer, expressly states that in or about April, 1872, the said Drew had an accounting with the defendant for said note of $100,000, and the interest thereon, and for this loan of $30,000, and the interest thereon, and there was found to be due to the defendant from said Drew on said matters about the sum of $175,000, in payment for which the said Drew gave to the defendant eighty bonds of the Albany & Susquehanna Railway Company, of the par value of $1,000 each, but of the actual value of $67,000, and for the balance said Drew gave to the defendant another promissory note, for $118,-297.54, payable on demand, with interest at seven per cent.; and that subsequently said defendant loaned to said Drew the eighty bonds, which the latter used for his own purposes, and subsequently thereto, and in 1872, or the early part of 1873, said Drew transferred to the defendant, in payment of such note of $118,297.54, and the interest due thereon, and of the amount of said eighty bonds which he had borrowed, the securities which form the subject-matter of this action. There is no claim whatever made that, at the time of the transfer of these securities, the loan of $30,000 was outstanding. On the contrary, the express allegation is that the original note of $100,000, and the indebtedness of $30,000, with the accrued interest thereon, was paid by the making of the note now outstanding of $118,000, and the transfer of the Albany & Susquehanna bonds. Therefore, the loan of $30,000 was extinguished, as a result of this transaction. Neither is such claim substantiated by the evidence. All the evidence which has been introduced in reference to the $30,000 loan is entirely in harmony with the allegation of the answer that that indebtedness was wiped out at the time of' the settlement, when the eighty bonds were transferred, and the $118,000 note given;" and, in view of the formal declaration of the defendant upon this point, and the other evidence in the case, no other conclusion can be arrived at.

It is claimed, however, by the plaintiff that the defendant Chamberlain has no claim because of the transaction relating to the eighty Albany & Susquehanna bonds, for the reason that those bonds never belonged to the defendant Chamberlain, but were always the property of Drew, having been deposited by him with the defendant as security for his indebtedness to him; and this is the purport of the testimony of the witness Boyd, who pretended to have a very vivid and distinct recollection of words used in conversations had about twenty years before, in which he had no personal interest; and his recollection is so vivid that these bonds were given as security upon the loan that it tends to throw discredit upon his whole narrative, and but little weight should be given to the same, unless supported by other circumstances. We think that it was the clear intention of Drew, at the time he transferred the bonds and securities in question, to secure Mr. Chamberlain for whatever indebtedness he (Drew) owed to him, and that there was an indebtedness arising out of the transaction relating to the eighty bonds. That these bonds were given to Mr. Drew by Chamberlain, sold by Mr. Drew, and ■ the proceeds received by Drew, seems to us to be satisfactorily established, notwithstanding the testimony of Boyd, by the written order, which, we think, was written by Mr. Boyd, authorizing the giving up of the bonds by Boyd, Townsend & Co.:

“ Deliver to Daniel Drew $80,000 of the first mortgage bonds of the Albany & Susquehanna Bailway Co., in your hands, belonging to me, at my risk.
(Signed) “Daniel Chamberlain.”

Would such an order be given if Chamberlain was surrendering to Drew his own property ? Would Boyd have written such an order if he supposed that these bonds belonged to Mr. Drew ? Chamberlain says, “ Belonging to me,” and they are to be delivered “ at my risklanguage absolutely incompatible with the idea that they actually belonged to Mr. Drew, and that Chamberlain was not the owner thereof. After this long lapse of time, it seems to me that more weighty testimony than that of Boyd is needed to overcome the solemn declaration of a writing whose recollec-■ tion cannot fail, and to which additions out of the imagination cannot be made. Therefore, this indebtedness existed at the time of the transfer of these securities; and it being the object of Drew to secure Chamberlain for that which he owed him, and it being the object of Boyd in getting these- securities, as he testifies, to protect Mr. Chamberlain, in what would the protection consist if these $80,000 of bonds were to be left out of the calculation, and only the $118,000 secured ? The thing to be done would only have been half accomplished, and Mr. Boyd gives us the idea that it was completely effected.

The whole tenor of the testimony of Boyd is in respect to his solicitude for the interest of Chamberlain, to see that he was protected against Drew’s indebtedness; and although he attempts to whittle this down by the narration of an interview with Drew, in which apparently precise language is given,- after the lapse of twenty years, yet undoubtedly it was the intention of Drew that Chamberlain should be protected, ánd these securities were given to protect whatever indebtedness might be due from Drew to Chamberlain. But it may be said that if Boyd is not mistaken in reference to the fact that these securities were transferred as collateral, and notin payment of the indebtedness, and that Chamberlain’s claim in that respect is unfounded, why should not the same weight be given to Boyd in respect to these eighty bonds? For the simple reason that the claim of Chamberlain in respect to these securities being given in payment is not supported by the written and admitted facts. If the note was paid,- why was it not surrendered ? The $100,000 note was paid and disappears. The $118,000 note still exists. It is not the practice among business men, after a note is paid, for the creditor still to retain the paper: and that is the reason why we think that Chamberlain is mistaken in his claim that these securities were given in payment of the indebtedness. Upon the whole case, therefore, basing our judg, ment upon the documentary evidence in the case, we are of opinion that the securities in question were deposited as collateral to the indebtedness of Drew to Chamberlain, and that such indebtedness consisted in the $118,000 note, and the liability for the $80,000 Albany & Susquehanna bonds. For the reasons above stated, we think the court erred in including in the indebtedness to Drew the $30,000 loan, as no such claim was presented upon the pleadings, and does not seem to be supported by the evidence. In view, however, of the report of the referee in regard to the condition of the accounts as between Chamberlain and the assignee of Drew, this makes no difference in the final result. The deficiency, as found by the referee, amounted to $141,000. The amount of the $30,000 loan was about $60,000, thus leaving a balance upon the whole account due to Mr. Chamberlain.

We think, therefore, that the judgment, so far as it dismissed the complaint, should be affirmed, but without costs.

O’Brien and Lawrence, JJ., concur.