author: Follett, J.

text:
    The People ex rel. Knickerbocker Press, App’t v. Edward P. Barker et al., as Commissioners, etc., resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Taxes — Corporation—Residence .
    The statement of the principal place of business or principal office of a corporation in its certificate of organization is as against the corporation, conclusive evidence of its residence for the purposes of taxation, unless its residence has been changed pursuant to some statute.

      Certiorari to review the assessment of relator’s property for taxation:

      Everett P. Wheeler, for app’t; James M. Ward, for resp’ts.
   Follett, J.

— The relator was incorporated August 26, 1891, pursuant to chapter 567 of the Laws of 1890, — the business corporations law, — which requires that the location of the principal business office of corporations organized under it shall be stated in the certificate of incorporation. In the certificate it is stated that “the location of its principal office is in the city of New York.” The business of the corporation is printing, binding, and manufacturing books. Immediately after its incorporation it purchased land at New Rochelle, in the county of Westchester, and there erected a factory, whereat all of its manufacturing is carried on, and there the financial concerns of the corporation are principally transacted. Where the corporation was assessed in 1893 does not appear, but in the year 1894 it was assessed in the city of New York. The relator, asserting that it is not a resident of the city of New York and liable to taxation therein, obtained a writ of certiorari to review and set aside the assessment The policy of this state is to require corporations organized under its laws to have a fixed residence or domicile, which is deemed to be where it has its principal office or principal place of business. Section 3 of chapter 687 of the Laws of 1892 — the general corporation law— provides : The term, office of a corporation, means its principal office within the state, or principal place of business within the state, if it has no principal office therein. The office of a stock corporation shall be in the county, town or city in which its business is principally carried on.” "Under this statute the terms “ principal office” and “ principal place of business” are synonymous when used in respect to corporations organized under the laws of this state. When a business corporation is organized, its incorporators are required to select for it a domicile, or place of residence, which must be stated in the certificate of incorporation. It is for many reasons important that the residence or domicile of a corporation shall be a matter of public record. Annual reports and consents to mortgage the property must be filed in the office of the clerk of the county in which the principal office of a corporation is located, and notices to reduce or increase its capital stock must be published in the county wherein its principal office is located, and persons having occasion to inquire into the financial standing of a corporation, or as to the validity of its mortgage bonds, should be informed by the public record at what office the inquiry should be made. In case the statute under which a corporation is organized requires that its principal place of business or its principal office be designated in its certificate of organization, the statement is as against the corporation conclusive evidence of its residence, unless its residence has been changed pursuant to some statute. Transportation Co. v. Scheu, 19 N. Y. 408; Starch Factory v. Dolloway, 21 N. Y. 449: Miner v. Village of Fredonia, 27 id. 155; Metcalf v. Messenger, 46 Barb. 325; Chesebrough Manufacturing Co. v. Coleman, 44 Hun. 545; 9 St. Rep. 360; Union Steamboat Co. v. City of Buffalo, 82 N. Y. 351.

It is urged that this rule will enable corporations to designate as their principal place of business some town in which taxes are low, and remote from the real place of business of the corporation, and so substantially escape taxation. The statute requires that the certificate shall disclose the location of the principal office of the corporation, which “shall be in the county, town or city in which its business is principally carried on.” The statement of the location of its principal office or place of business is a condition precedent for the organization of a business corporation, and should it appear that the location of its principal office was willfully misstated in the certificate, or, in case the corporation should change its principal place of business without effecting a legal change of residence, for the purpose of evading taxation, it might present a case, under section 1798 of the Code of Civil Procedure, for the attention of the attorney general. We think the corporation is concluded by its certificate from asserting that it is not a resident of or taxable in the city óf New York. The order should be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Cullen, J. Dykman, J.

license: Public Domain

text:
    William E. Russell et al., Resp’ts, v. Sarah E. Buckhout, as Administratrix, etc. App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Contracts — Personal—Death of party.
    A contract to do certain repairs on a building for a specified sum is personal and is not terminated by the death of the owner, but the adminisstrator is liable for work done thereunder after the death of the owner, though directed by the devise.
    Appeal from a judgment in favor of the plaintiffs.

      Fred. J. Lancaster, (Louis O. Van Doren, of counsel), for app’lt; C. & T. Perry, for resp’ts.
   Cullen, J.

— There was nothing “personal" in this contract in suit It was a mere contract to do certain work for a stipulated price. The plaintiffs were not to perform it personally, out at least in part though their workmen. No relation of master and servant existed between the parties. It is true that upon the death of Webb the house went by devise to Mrs. Rankin, and his personal representatives had no interest in it. But this would be the case in every contract for work on real estate where the testator does not devise the realty to his executors, or direct an equitable conversion. In Lacy v. Getman, 119 N. Y. 111; 28 St. Rep. 546, Judge Finch does state that the executor had no power to put the plaintiff at work on the land or interest in it. But I think the decision does not proceed on that ground, but on the ground that death would substitute a new master. It has been held that, where the deceased had contracted for the erection of a building on land, the heir at law could enforce the performance of the contract at the expense of the personal estate. 3 Williams, Ex’rs, 1829.

Brown, P. J., concurs.

Dykman, J.

(dissenting).- — The plaintiffs presented to the defendant, who is the administratrix of Eckford Webb, deceased, a claim for services and material performed and furnished in the reparation of a house belonging to Webb. The claim was referred under the statute, and the referee has found that the contract for the woi'k was made by Webb in his lifetime, and that he agreed to pay the plaintiffs $676 therefor. The referee has further found that the plaintiffs entered upon the performance of their contract, and continued the work until September 27,1893, when Mr. Webb died. Then the work was suspended, but was afterwards resumed, and completed in the month of December, 1893, According to the testimony of one of the plaintiffs, the value of the labor and materials furnished previous to the death of Webb was $150 or $175. There is no material dispute about the facts, and the question involved is whether the plaintiffs can recover against the administratrix for work done and the material furnished subsequent to the death of Webb. The house in which the repairs were made by the plaintiffs was devised to Jessie Belknap Rankin by Webb, and she gave the order for the resumption of the work after the death of Webb. The contention of the administratrix is that the estate is only liable for the work and material furnished previous to the death of her intestate, and that the owner of the property is liable to pay for all that was done by her order subsequent to the death of Webb. The testimony respecting the original contract with Webb is quite unsatisfactory. It was given by the plaintiff Russell and the witness Rankin, both of whom are deeply interested, and anxious to charge the estate with the claim. Independent of the consideration of such interest, however, it is impossible to gather from their testimony the fact that when the final estimate was submitted to Webb he gave the order to proceed with the work. In fact our understanding of the evidence is that Webb was then in an upper room, sick, and did not see Russell, and that Mrs. Rankin gave him the direction to proceed. But the referee has found the fact according to the plaintiffs’ contention, and, as we intend to place our decision upon a different ground, we will pursue that subject no further. As we have already said, the work under the contract was done upon a house which belonged to Mrs. Rankin, after the death of Webb, and the work, after his death, was done by the order of Mrs. Rankin. The administratrix of Webb therefore had no control of the work, and no authority over the property. She had no right to enter the house, or give any direction to the plaintiffs, and the estate had no interest in the performance of the contract, and the defendant, in her representative character, could derive no benefit therefrom. Subsequent to the death of Webb, the labor wgs upon a house of Mrs. Rankin, under the direction and control, for her benefit, and by her order. The law will imply a contract on her part to pay for such work, and justice requires her to do so. The contract in this case was an undertaking which required the exercise of peculiar skill and knowledge, which the plaintiffs were supposed to possess, and in such cases there has been a general concurrence of authority that the contract relations of the parties are severed and dissolved by the death of the person employed. The rule was well settled that the death of a servant terminated the contract of employment independent of the question whether the undertaking required the exercise of skill or the rendition of manual services; and now the rule is held applicable to the master. Lacy v. Getman, 119 N. Y. 112; 28 St. Rep. 546. The case of Lacy v. Getman, id., is much like this. The plaintiff there made a contract with the defendants’ testator to work upon his farm for one year for $200. He entered upon the service in March, and worked until the middle of July, when his employer died. By his last will and testament the testator devised and bequeathed to his widow a life estate in the farm and all his personal property. The executrix did not employ the plaintiff, but he continued to work upon the farm, under the direction of the widow, until the end of the year, and then commenced an action against the executrix for his services during the entire year. The court of appeals decided that the rule that the relation of master and servant is dissolved bv the death of either party applies in cases where the relation may be deemed purely personal, and involves neither property rights nor independent action ; and further, that the rule is applicable both to the contract of the master and to that of the servant, and includes as well cases where the services are those of unskilled as well as where they are skilled labor.

The judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiffs consent to reduce the judgment to $175, and the disbursements subsequent to the order of reference. If such stipulation be made, then the judgment, so modified, is affirmed.


author: Bradley, J.

text:
    Guissippe Mancuso, as Administrator, etc., App’lt, v. Cataract Construction Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21 1895.)

    1. Master and servant — Risks.
    Where the calamity appears from the evidence to he a casualty from a cause unforeseen and not within reasonable apprehension, it is within the hazards incident to the service assumed by the employe.
    2. Same — Saee place.
    The company was held not liable for a failure.to furnish its employe a safe place in which to work.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Charles Oishei, for pl’ff; Ely & Dudley and Morris Cohn, Jr.r for def’t.
   Bradley, J.

— The plaintiff’s intestate, while engaged as employe of the defendant* in a pit which was being excavated, was killed by the explosion. The plaintiff- charges that the death was occasioned by the negligence of the defendant. The defendant’s method of making the pits to take off the earth from the surface down to the rock, then with steam apparatus drill holes to the depth of several feet, insert dynamite cartridges, and by their explosion break up the rock. The explosion in the pit in question had taken place three or four days before the accident. The plaintiff’s intestate and another employe were directed by the foreman of the work to go into the pit and take out the broken stone. In proceeding to clean it out they found a block of stone too large for them to move and too hard to break up with their hammers. They were then directed to drill three holes into it to receive dynamite. They drilled two holes about ten inches in depth, and were proceeding to drill the third one, and had gone to the depth of about six inches when the explosion occurred, causing the death of the plaintiff’s intestate, but, so far as appears, without injuring his comrade in the work. The explosion was in some manner caused by the operation of their drilling, and it is evident that some of the dynamité used for the blast a few days previously remained unexploded. But it does not appear to have been attributable to the negligence of the defendant.

There is no evidence tending to prove that the apparatus or machinery by the means of which the previous blast was produced was in any respect defective or unsuitable for the purpose. The only question is whether the defendant is chargeable with negligence as for failure to furnish the plaintiff’s intestate with a safe place to work. It is the general rule that the master is required to use reasonable care in that respect. Before those workmen proceeded to drill they cleaned off the stone upon which they operated. Nothing was then visible to indicate that there was any dynamite there, or any place for it in the stone on which they were at work. Nor does there seem to have been any reasonable ground for apprehension that there was any. It is urged that no inspection followed the prior explosion to ascertain whether any dynamite remained unexploded in the pit. That certainly was a prudent, precautionary thing to do, and the evidence on that subject is very vague, and too uncertain to show that it was not done. But, however that may be, the decedent was one of several employes engaged generally in the work of making the pits. The details of the service were under the management of the defendant’s foreman, who directed the distribution of the work among the workmen employed. He was their co-employe. They assumed the ordinary hazards incident to the service, including these arising from his negligence as such co-employe. Loughlin v. State, 105 N. Y. 159 ; 6 St. Rep. 826; Hussey v. Coger, 112 N. Y. 614; 21 St. Rep. 848; Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. The pit was about ten feet in depth and. about eight feet in diameter. The situation within it was open to view from the surface of the ground above. It may, however, be assumed that if there had been any reasonable ground to apprehend danger in the performance of the work assigned to the decedent in the hole or pit, the question wbould -have arisen whether by the direction to go in there and do the work the foreman-may not have been placed in the relation of master to him. Crispin v. Babbitt, 81 N. Y. 516; Pantzar v. Mining Co., 99 id, 368; McGovern v. Central Vt Railroad Co.,. 123 id, 280 ; 33 St. Rep. 416 ; Hogan v. Smith, 125 N. Y. 774; 35 St. Rep. 870. So far as the facts are disclosed by the evidence, the existence of any danger in the performance of - the work where and in which the decedent was at the time engaged could not by the exercise of ordinary care have been ascertained or apprehended. And in view of all the circumstances, as they appear by the evidence, the calamity seems to have been a casualty from a cause unforeseen and not within reasonable apprehension. It was within the hazards incident to the service assumed by the employe. The nonsuit was therefore properly directed. The motion for a new trial should be denied.

All concur.


text:
    Walter H. Sherman, v. Julius Robertson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Evidence — Documentary—Letter.
    A letter written by an agent to his principal at the request of another party, containing the proposition of such party as to terms and conditions, which was accepted hy the principal, is competent as tending to prove the proposition accepted.
    ' Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.,

      Frank M. Goff, for app’lt; H. L. Bennett, for resp’t.
   Bradley, J.

— The action was brought to recover for the alleged conversion of a quantity of leather, which the ^plaintiff and John M. Sherman, then constituting the firm of Sherman & Sherman, had placed in the hands of the defendant as collateral security for some indebtedness to him. The main controversy has relation to the extent of the security for which the leather was deposited with the defendant. The evidence on the part of the plaintiff tends to prove that it was solely as security for the payment of two notes of his firm, of date July 26, 1893, for equal sums, due at one and two months, amounting to $551.50; while on the part of the defendant it is claimed that the leather was delivered to and held by him as security for the payment of those notes and a further indebtedness of the plaintiff’s firm to him existing in account, and amounting to $244.25. The purpose for which the leather was delivered to and taken by the defendant, as shown .by the arrangement between him and the plaintiff’s firm, rests mainly in written correspondence. The occasion for the security arose when they desired renewal oE their note about to mature. This the defendant consented to do on condition that they furnished the collateral. The two notes before referred to, and the deposit of the leather, were the result of that arrangement; and the correspondence in the outset, and when the leather was sent to the defendant, fairly justifies the conclusion that it was delivered as collateral security for the payment of the renewed paper only. Shortly after the leather was sent to the defendant, he, in acknowledgment of the receipt of the bill of lading, inserted in his letter the expression that he would take due care of the property for the plaintiffs firm, “ until pending obligations have been met by you.” It is urged that such expression shows that the leather was received by the defendant as security for the payment of the account as well as the notes, and that it concluded the plaintiff from asserting any right to the return of the property until payment of it was made. The most that the evidence permits to be said in that respect is that, whether or not .the security furnished by the leather extended beyond the renewed notes was a question of fact for the jury. The notes were paid, and thereupon the plaintiff, who had become the sole owner of it, demanded the possession of the property of the defendant He insisted upon the payment of the account as a condition precedent, and refused, until its performance, to return the property to the plaintiff. The questions of fact were fairly submitted to the jury, and their verdict is supported by the evidence. In the outset of the negotiation for the renewal of the maturing note before mentioned one Martin, who was in the service of the Sherman firm as salesman, called upon the defendant, and had an interview with him on the subject, as he had been requested and instructed by the firm to do. There is evidence to the effect that the defendant then made to Martin a proposition as to the terms and conditions upon which a renewal of the note would be granted, and requested Martin to submit the proposition by letter to his firm, and by it request Sherman & Sherman to wire him (defendant) whether or not they accepted it. Martin wrote the letter, which was followed by a telegram from them, accepting the proposition. The letter, abstractly considered, was not competent as evidence, but, in view of the fact that it appears to have stated the proposition as made by the defendant, and was sent at his request by Martin, and acted upon by acceptance, the letter, in connection with evidence of the fact that it contained the proposition as made by the defendant, was competent, as tending t,o prove the proposition which Sherman & Sherman, by the telegram, accepted. It appears that some time before the commencement of the action the plaintiff wrote the defendant that he had made a deposit of the amount of the account, subject to the order of the defendant, when the property should be received, examined, and found to be in good condition. This letter was received in evidence without objection, and to the testimony of a witness to the fact that the money had been so deposited the only specific ground of objection made was that it was not the best evidence. Neither the letter nor this evidence had any apparent materialty upon the issues on trial. But the objection specifically taken was not tenable. There was no error in the rulings at the trial to the prejudice of the defendant:

The judgment and order should be affirmed.

All concur.


text:
    Marco Lucco, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Master and servant — Appliance.
    A railroad company is chargeable with negligence in using, in a construction train, a car with broken drawheads, in consequence of which an employe is injured.
    2. Same — Contributory negligence.
    An employe, who is injured, is not chargeable with negligence in standing on a platform of a car, though directed not to do so, if uninformed of the reason for such order and unaware of any danger.
    Appeal from an order denying a motion on the minutes to set aside a verdict for plaintiff and for a new trial.

      Albert H. Harris, for app’lt; Norris Bull, for resp’t.
   Bradley, J.

— The plaintiff received an injury which he charges wa's occasioned by the negligence of the defendant He went into the service of the defendant to assist in unloading steel rails from ten flat cars, which were moved by an engine for the distribution of the rails along the track. When the train reached the point where they were wanted, rails were thrown from either side of the cars. This was repeated when the train moved its length forward. Sixteen men were engaged in the work. At the time of the accident the plaintiff was at the rear end of the car next to the engine, engaged in the act of lifting a rail, to assist in throwing it from the car. His left foot was then resting on the platform of the car, and his leg was caught between a projecting rail of the next car and that upon which he stood, and was injured. When the latter car was brought into requisition for service on that day, it was defective, in that drawhead of the rear end of it had been broken or pulled out, and was entirely gone from the car, and. this car was connected and held to that next to it by a chain.

So far as the plaintiff’s injury was attributable. to the defective condition of the car, the defendant was chargeable with negligence. The first injury, therefore, is whether such conclusion was warranted by the evidence. The chain by which the cars were coupled did not permit the separation of them quite as much as would the use. of drawheads, and when the train stopped there was nothing between them to slack or stay their coming together until the contact of the bumpers. It seems that the intermediate movement of the train was short and slow for the purpose in which it was employed. At the time of the plaintiff’s injury the engine had stopped, and the men were proceeding to cast off a rail from the car, when the one in rear of it, moving forward, came in contact with it. The inference is fairly permitted that the resistance of the drawheads, if the cars had been coupled by means of them, would have kept the cars so far apart as to have protected the plaintiff against the consequences to him which followed. The evidence was such as to support the conclusion that the plaintiff’s injury would not have been suffered if the car had been supplied with a drawhead, and that, in view of the duty resting upon it to use due care in supplying suitable and adequate apparatus and appliances for the safety of its employes in the service, the defendant was chargeable with negligence, bv which this accident to the plaintiff was occasioned. Bushby v. N. Y. L. E. & W. Railroad Co., 107 N. Y. 374; 12 St. Rep. 9. Whether or not negligence on the part of the plaintiff contributed in any degree to the cause of his injury was also a question of fact, upon the evidence. The circumstances of the occurrence, as represented by the testimony of the plaintiff, tended to show that he was free from fault in that respect. There was evidence on the part of the defendant to the effect that he was, through the directions of the foreman, informed of the danger which might result from stepping onto the platform of the car, and directed not to do so, by a person who spoke in the Italian language, which was that familiar to the plaintiff. He, however, denied by his evidence, that he heard any such warning or direction, and testified that he had no knowledge that the car was defective in the respect before mentioned. This was the first time he had ever been at work upon a railroad, and it appears that he had been engaged only about one hour when the accident oc•curred. The question gf contributory negligence was fairly submitted to the jury by the trial justice, who charged them that “if the plaintiff was informed that it was dangerous for him to stand upon the platform, and he disobeyed the instructions, and put his foot upon the platform, then he cannot recover.” The question of his contributory negligence, as well as that of negligence of the defendant, was properly for the jury.

The defendant’s counsel requested the court to charge that, if the jury found that the accident was occasioned solely by reason of the iron having shifted on the car, the plaintiff was not entitled to recoven The court declined to charge fully as requested, and exception was taken. It is deemed unnecessary to consider that exception, further than to say that our attention is called to no evidence, and none is found, tending to prove that the rails had shifted any from the position in which they were placed on the cars when loaded upon them. The court was also requested to charge that, if the plaintiff disregarded the warning or direction given to him, — not to place his feet between the rails, — he could not recover, although the jury thought that he was not informed of the reason why the order was given. The court, declining to charge in that language, instructed the jury that if they reached the conclusion that he was directed not to put his foot there, and that if he was informed, if he did put his foot on the platform, what the effect would be if the cars came together, and he disobeyed the instructions, he could not recover. Exception was taken to the refusal to charge as so requested. This was not error. For the purpose of the question, it must be assumed that the plaintiff was ignorant of the defective condition of the car and of the coupling of it with the next one; that he was aware of no danger from those causes; and that he was then engaged in the work at the place assigned to him. It is possible that he may have understood mere directions not to step on the platform as having relation to the method of doing the work, and not pointing to any danger to him. Then he may have been so busily engaged in the work, and his attention being so occupied with it, that, he not being advised nor having any apprehension of danger, such direction may not at that moment have occurred to him. In the absence from the proposition of the elements of reason on his part for the apprehension of danger, the court, in view of the place and under the circumstances in which the plaintiff was then engaged, was not required to charge it.

The suggestion is made that there may have been some other concurring cause of the accident, for which the defendant was not responsible, and, therefore, the question whether it was the result of such defective condition of the car was 'matter of speculation. That proposition, in the view taken of the evidence, is not applicable to the present case, for the reason before stated, — that the evidence permitted the jury to find that the injury would not have been suffered by the plaintiff if the cars had been coupled by means of • drawheads, in the usual manner. There was no error in the rulings at the trial to the prejudice of the defendant, and the verdict was fairly supported by the evidence.

The order denying the motion for a new trial should be of-' firmed. All concur.


text:
    Maria Dubois, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Negligence — Proximate cause.
    The fact that the company left a coal train standing on a crossing is not the proximate cause of the death of a person struck by a train on the next track, even though, but for the standing train, he would have passed over the tracks before the arrival of the other train.

      2. Same — Rate oe speed.
    The fact that the colliding train was running through a rural section at the rate of fifty-five or sixty miles an hour, is not in itself negligence on the part of thekompany.

      3. Same — Signal.
    The evidence was held insufficient to enable the jury to find that no signal was given, and to impute negligence for the want of it.
    4. Same —Contributory.
    A person who, when opportunity permits, fails to take careful observation and satisfy himself that it is safe to cross the track, before proceeding to do so, is guilty of contributory negligence.
    5. Same — Proof.
    The fact that the negligence of the deceased did not contribute to the disaster, as well as the negligence of the company, must be made to appear from either direct or inferential evidence.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      P. Chamberlain, for pl’ff; Albert H. Harris, for def’t
   Bradley, J.

— On the 6th day of August, 1894, as the plaintiff’s intestate was proceeding on a highway to cross the defendant’s railroad, he was struck by a passing train and killed. The plaintiff charges that the disaster was occasioned solely by the negligence of the defendant. The plaintiff was nonsuited at the trial.

The occurrence was about nine o’clock in the evening, and it was then quite dark. It was in the town of Grates, county of Monroe, and the highway was known as the “ Field road.” The defendant’s tracks crossing the road were four, numbered from the south to the north. The deceased, on foot, approached the tracks from the north. There was then a train of coal cars standing on track number 2 over the crossing. After waiting some minutes, and as the coal train was not moved, he proceeded to cross by climbing over between cars, and when he jumped from the train onto the south side of it, he was struck by a train going east on track number 1. It seems that there was no engine attached to the coal train, and that it remained there for some time, and was an obstruction to the passage in the road over the railroad tracks. The defendant was chargeable with negligence for permitting the coal train to remain the length of time that it had been there at the time of the accident, and the inference is fairly justified that he would have safely passed over the tracks before the train arrived if that obstruction to his passage had not been there. In that sense the negligence of the defendant was a cause of the death. But this condition there did not justify the decedent in incurring the hazard of encountering a passing train upon the south track. The cars between which he passed were a sort of flat cars, with boxes two or three feet high, and his head was two or three feet above them when he was on the platform between them, where he stood for a moment, looked west and east, and then jumped. Ro reason appears why his opportunity to see the approaching headlight was not as favorable as it would have been if the coal train brad' been absent and he had been on the ground. In that view, it is difficult to see that the standing coal train contributed to the accident otherwise than in inducing delay in the passage of the decedent until the fatal moment. This did not render the fact that the coal train stood there . the pertinent or proximate cause of the occurrence. He was not held back by it, or required by it to go forward when he did. He voluntarily proceeded to pass over the train, and might have done so at his pleasure sooner if he had so chosen, or might have delayed doing so until later. Unless some further reason exists to render it so, the negligence of permitting the coal train to remain there is not imputable as the cause of the unfortunate event

This was a rural section of the country, and the fact that the colliding train was running at the rate of fifty-five or sixty miles an hour was not in itself negligence on the part of the defendant

The evidence was not sufficient to enable the jury to find that no signal was given,‘and to impute negligence for the want of it. The two persons who were at the crossing for some little time before and at the time the train passed did not assume to know that none was given. One of them said that he heard nothing of the train, any whistle, or bell before he saw it crossing the highway, and added that he did not know whether the bell was rung or not; that he was on the south side about thirty feet away from the track attending to his horse, waiting for the removal of the coal train from the crossing. The other person was on the south side of the coal train, and with Dubois at the time the latter proceeded to pass over, testified that as the decedent was climbing onto the coal train he heard a whistle; that he could not tell what whistle it was; “ it must have been the train that was coming east, but I ain’t certain of that; it might have been the other engine for all I know;” that he could not say that he had heard the train until it passed at the crossing, because there were other engines “steaming” about there. Ho negligence of the defendant to which the injury is imputable as the proximate cause appears, unless in permitting the coal train to stand on the crossing.

Some evidence was furnished tending to prove freedom of Dubois from contributory negligence, or to relieve him of such imputation, which might otherwise exist. He was struck immediately after he passed from the coal train. He evidently did not see the approaching train before he jumped to the ground, although the evidence tends to prove that before doing so he looked to the west and to the east. Unless his view was otherwise obstructed, he could have seen it, as the engine had a headlight and the track to the west was straight for a long distance, and when he was standing between the ears of the coal train his head was so far above them that the car west of him was no obstruction to his view. Why he then did not see the headlight of the train, and avoid the accident, is a question somewhat difficult to answer. It does not appear that there was anything on or connected with the coal train which in any manner interrupted his then seeing a train coming from the west. From an engine standing a few feet east of the the crossing, and facing west on a side track just south of that on which the train passed, was issuing some smoke or steam, or both, and it emitted a hissing noise, and another engine somewhere west of the crossing made a like noise. The space west of the crossing for some distance was lighted up by the headlight of the engine standing east of it. The night was rather quiet, with a breeze from the north, and the smoke from that engine passed to the south. The precise location of the engine west of the crossing does not appear. The track just south of the coal train of course was clear! As has been observed, the person before mentioned who stood on the north side with Dubois when he started to go and went over the coal train testified that he did not see or hear the train until it came about opposite to him, and he attributed his failure to hear it to the noise made by the other engine, adding that when Dubois was climbing onto the coal train he heard “some whistling, a great whistling about,” and was going to say “look out.” I saw him look to the west and to the east, and 1 thought he knew what he was doing, and he jumped down, and just at that moment the train went by.”

It is true that the speed of the train was such that it passed over considerable space in a brief time. But when he was standing upon the coal train it does not appear what, if anything, there was to confuse or obstruct his view of the approach of the headlight of the train on the adjacent track. And it is difficult on the evidence to see - how he was enabled to throw himself in front of the train in such proximity to it without the want of reasonable care on his part. While he was on the coal train there was nothing to disturb or deny to him deliberation or the exercise of his faculties. His opportunity then no less permitted, than his purpose to cross the track required, him to take careful observation, and satisfy himself that it was safe to do so, before proceeding to cross the track. If he had done this, no apparent reason is disclosed by the evidence why the calamity would not have been avoided. As the burden was upon the plaintiff to prove that the negligence of her intestate did not contribute to the disaster, that fact, as well as the negligence of the defendant, must be made to appear by evidence direct or inferential. For the reasons before given, the charge of negligence of the defendant as the cause of the death does not seem to have been supported by the evidence, nor does it fairly permit the inference that the decedent was free from contributory negligence.

The motion for a new trial should be denied, and judgment directed for the defendant. All concur.


author: Pryor, J.

text:
    Josephine Mahon, App’lt, v. Patrick Burns, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895).

    Negligence — Contributory—Evidence.
    Application of the rules that a scintilla of proof by the plaintiff will not avoid a nonsuit, and that, in an action for negligent injury, evidence of freedom from contributory negligence is an indispensable part of plaintiff’s case.
    Appeal from a judgment of the city court affirming a judgment dismissing the complaint, plaintiff appeals.

      Layman W. Redington, for app’lt; Joseph Steinert, resp’t.
   Pryor, J.

— The plaintiff incurred the injury of which she complains in going along the hallway to the water-closet. She was the tenant of the defendant; and, as landlord, he owed her the duty of reasonable care to keep the hallway in a condition for safe passage. Peil v. Reinhart, 127 N. Y. 381; 38 St. Rep. 913. The evidence suffices to authorize the inference that the way was. blocked by an obstruction, and that the obstruction was caused by persons engaged in replacing the floor of the hall with tiles. It is not apparent, however, that these persons were the servants of the defendant, but it seems rather that they were workmen under an independent contractor. “In order to-establish the liability of one person for an injury caused by the negligence of another, it is not enough to show that the latter was at the time acting under an employment by the former; it must be shown, in addition, that the employment created the relation of master and servant.” Hexamer v. Webb, 101 N. Y. 377. Nor is it apparent that the defendant either knew or by due diligence would have known of the obstruction. How long it had existed at the time of the accident is not apparent; and, for aught in the evidence, it was interposed too recently for the defendant, though alert, to be aware of it. Neither may it be said that the omission to light the hallway at 10:30 in the night was negligence, unless upon proof that the defendant was cognizant of the obstruction, Hilsenbeck. Guhring, 131 N. Y. 674; 43 St. Rep. 936. When it is considered that the cause of plaintiff’s injury was not a want of repair to the premises, —she testifies that the repairs were then complete, — but a causul obstruction in the hallway, the irrelevancy, of the authorities adduced by appellant is sufficiently obvious. The conclusion is that the proof of defendant’s negligence was too unsubstantial for submission to the jury. Dwight v. Germania L. Insurance Co., 103 N. Y. 341, 359; 3 St. Rep. 115. Conceding the contrary, however, and still the dismissal of the complaint was not error. It is fundamental in the law of this state that, to support an action for negligent injury, the plaintiff must establish his own freedom from contributory negligence, Reynolds v. Railroad Co., 58 N. Y. 248, 250; and, “when the circumstances point as much to the negligence of the plaintiff as to its absence, or point in neither direction, a nonsuit should be granted.” Wiwiroski v. L. S. & M. S. Railway Co., 124 N. Y. 420, 425; 36 St. ,Rep. 405. In. the-case before us, the plaintiff knew that on Tuesday the hallway was not open to passage, that on the morning of Wednesday — the day of the accident — -the men were still at work upon it, that “a couple of planks outside seemed to be protecting some work at the side,” and “a few little boards may have been there.” She knew, also, that the gas was not lit, and that the hallway was dark. Nevertheless, “supposing that all was then done, and I could go right out to the water-closet,” she ventured along in the darkness of the night until, “a few feet from the back door, Istruck against some hard substance, and hurt myself badly.” Such is the plaintiff’s story ; and assuming it to be true, it not only fails to show absence of negligence on her part, but plainly indicates that her injury was the effect of her own carelessness. Hilsenbeck v. Guhring, supra.

The exception to the exclusion of evidence of the condition of the hall on Monday is untenable, because the question was as to its condition on Wednesday, when, by the plaintiff’s own testimony, it was in a very different state. Moreover, if the ruling be wrong, it does not affect the issue of contributory negligence, for which alone the complaint was properly _ dismissed. Judgment and order affirmed, with costs. All concur.


text:
    Mayor, Aldermen and Commonalty of the City of New York, App’lt v. Frank A. Biglow, Resp’t.

      (New York Common Pleas, General Term,

      Filed, June 3, 1895.)

    Physicians — Registering license — Penalty for failure.
    Instead of registering his license as a plysician with the county clerk, as required by law, the defendant filed it with the board of health. After suit commenced to recover the penalty imposed for failure to make proper registration, but before trial, the defendant made due registration. Held, that such subsequent registration is a defense to an action for the penalty.
    Judgment was entered in favor of defendant.
    As a condition of the right to practice medicine in the state of New York, the statute requires that a license be registered with the county clerk; and, for practicing without such registration, a person shall forfeit $50 to the county. But, if one “ whose registration is not legal, because of error, misunderstanding or unintentional omission, shall submit satisfactory proof that he had all the requirements described by the law at the time of his imperfect registration, he may on unanimous recommendation of a state board of medical examiners, receive from the regents under seal a certificate of the facts, which may be registered by any county clerk and shall make valid the previous imperfect registration.” Having, from ignorance of the law, filed his license with the board of health, instead of with the county clerk, the defendant pursued the practice of medicine; and thereupon this action was brought to recover the prescribed penalty. At the trial the defendant produced a certificate by the county clerk that, since the suit, he had made due registration, in conformity with the statute. Upon this state of fact, the plaintiff moved for judgment; but the court decided for the defendant, and dismissed the complaint.

      Robert C. Taylor, for app’lt; James R. Angel, for resp’t.
   Pryor, J.

— Despite the elaborate and interesting argument of plaintiff’s counsel, we are of'opinion that the action may not be maintained. “ In expounding penal statutes, it is an established rule that the construction must be strict as against the defendant, but liberal in his favor.” Gould, J., in Myers v. State, 1 Conn. 502 ; Whitaker v. Masterton, 106 N. Y. 277, 280; 8 St. Rep. 888. And this canon of interpretation was applied by a very great judge to precisely such a statute as that in question; namely, one imposing a penalty for exercising a trade without due qualification. Lord Mansfield, in Raynard v. Chase, 1 Burrows, 2, 6.

It is contended that, as the penalty was incurred by the defendant’s unauthorized practice, his subsequent qualification is ineffectual to its remission. The registration with the board of health argues the plaintiff’s was not an imperfect registration, but simply no registration. The statute allows an “ illegal ” registration to be repaired, where the cause of it was “some error, misunderstanding or omission.” The case is within the very terms of the statute. Nor is.it less consistent with the policy of the statute, which is to admit a competent physician to practice when, in good faith, he has endeavored to comply, with its requirements. If that be so, still the plaintiff insists that the statute is not retroactive, and is inoperative to validate an invalid registration. This is just the effect it contemplates and accomplishes." By its terms the subsequent registration “shall make valid the previous imperfect registration.” What is thus made valid ? Obviously, the previous imperfect registration. If this be not the true construction, then the words are meaningless, because without them the correct registration would take effect at once, and authorize future practice. If so, urges the plaintiff, a man may register whenever he pleases. Why not, if, seeking to obey the law, he has evaded it by error or inadvertence ? The construction we adopt wquld be repugnant to the policy of the statute if the unauthorized practice of an incompetent physician were condoned by the subsequent registration. But, .to obtain such subsequent registration, he must “ submit satisfactory proof that he had all the requirements prescribed by law at the time of the imperfect registration.” Having such requirements, what harm ensues from suffering him to supplement the defective authentication of his competency ? The subsequent registration demonstrates his qualification from the beginning. Nor was the remedial operation of the subsequent registration in legalizing prior practice arrested by the institution of this action. As the suit is by the public for the benefit of the public, a repeal of the statute pendente lite would cancel the penalty. Bish. Writ. Law, § 178. Where the action is by an individual fry his own benefit, such repeal, any time before final judgment, would bar recovery of the penalty. Butter v. Palmer, 1 Hill, 324; Welch v. Wadsworth, 30 Conn. 149 ; Wharton v. State, 94 Am. Dec. 214, note. A fortiori is the penalty revoked by an act which the statute imposing it provides shall remove the provocation of the penalty. Without a penal cause there cannot be a penal consequence.

It is conceded that the defendant is a competent physician, in large practice ; that his failure to comply with the law in the first instance was not intentional, but inadvertent; that, apprised of his mistake, he promptly corrected 'it; that at the time of the trial his qualification was certified in legal form. Why, then, should he be chastised by a penalty denounced against imposture only. To give the statute such an effect would be equally against the settled rules of construction, the obvious policy of the law, and the equities of the individual.

Judgment affirmed, with costs. All concur.


text:
    Essie M. Gallagher, Resp’t, v. David Stevenson Brewing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Guardian and ward — Summary proceedings.
    A guardian in socage may lease the infant ward’s land in his own name, and, as such guardian or general guardian, may maintain a summary proceeding for possession of the land.
    2. Same— Counterclaim.
    A counterclaim against the landlord personally is not available against him in his capacity as guardian.
    Appeal from a judgment entered in favor of plaintiff.

      George W. McAdam, for app’lt; Charles A. Flammer, for resp’t.
   Pryor, J.

— In a summary proceeding for the dispossession of a delinquent tenant, it appears that the pursuer held the demised premises as guardian in socage for her infant children, and that she leased them in her own name and as of her own right The proceeding is prosecuted by her as guardian for the infant owners. For affirmative defense, it was pleaded and proved that she was indebted to the tenant, individually, in a sum exceeding the amount of the unpaid rent. Judgment went against the tenant.

It is argued for the appellant that since the lease was by Essie M. Gallagher in her own right, and the petition is by her as general guardian of her infant children, the conventional relation of landlord and tenant does not subsist between the parties to the proceeding. But, upon the evidence, the mother was guardian in socage of her infant children, and it appears that before the commencement of the proceeding she was duly appointed their general guardian. Whether as guardian in socage or general guardian, she had custody of the infants’ real estate, was entitled to receive its rents and profits, might lease it and recover the rent in her own name, and might maintain trespass or ejectment in respect of her wards’ land. Field v. Schieffein, 7 Johns. Ch. 150; Holmes v. Seeley, 17 Wend. 78; Bond v. Curtis, 7 id. 45; Thacker v. Henderson, 63 Barb. 271, 277, 278; In re Hynes, 105 N. Y. 560, 563; 8 St. Rep. 190; Byrne v. Van Hoesen, 5 Johns. 66. Such being the relation of the respondent to the demised premises, she had a right to lease them in her own name, and to maintain a summary proceeding for recovery of their possession. Sylvester v. Ralston, 31 Barb. 286, Though the premises be the property of her wards, in legal effect she is the landlord. Indeed the tenant is estopped to dispute her title. This being so, it is contended that the debt against Essie M. Gallagher in favor of the tenant is a legal counterclaim in bar of the proceeding. Code Civ. Proc. § 2244, as amended in 1893. But, by subdivision 3, § 502 of the Code, “ if the plaintiff is trustee for another; or if the action is in the name of another who has no actual interest in the contract on which it is founded ; a demand against the plaintiff shall not be allowed as a counterclaim.” The respondent prosecutes as guardian, i. e. as trustee for her wards; and, since she owes the debt in her own proper capacity, it is not available against her claim in the capacity of guardian. The judgment is affirmed, with costs.

All concur.


text:
    Mary Kiernan, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Evidence — Judicial notice — Pneumonia a disease.
    That pneumonia, of which a patient dies, is a “disease," is a fact of judicial cognizance ; and a judgment founded on a negation of the fact, though supported by evidence, will be reversed for error.
    Appeal from a judgment was entered in favor of plaintiff for $65 and costs.

      Arnoux, Ritch & Woodford, for app’lt; Adam Wiener, for resp’t.
   Pryor, J.

— By the terms of the policy on which the action proceeds, if the death of the insured was from “ pulmonary disease,” the plaintiff could recover only $32.50; otherwise she is entitled to the judgment for $65. The insured died of acute lobar pneumonia, by concession a pulmonary affection, but denied by plaintiff to be a disease; and she has found an “ expert ” to testify and a judge to decide that a mortal pneumonia is not a disease. It hardly consists with judicial gravity to argue against a proposition of which the absurdity is self-evident, which involves at once an affront to common sense, a misconception of the plain sense of a plain word, and a contempt for the uniform and universal signification of scientific nomenclature. That pneumonia is a disease is a notorious fact, and so a fact of judicial cognizance. Brown v. Piper, 91 U. S. 39, 42 ; Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570; Engraving Co. v. Hoke, 30 id, 444; People v. Snyder, 41 N. Y. 397 ; Lanfear v. Mestier, 89 Am. Dec. 658, note 663, 691, 693 ; 1 Greenl. Ev. § 6 ; 1 Whart. Ev. § 282. As the court takes notice of the fact, no proof of' it was requisite (Secrist v. Petty, 109 Ill. 188), and no issue could be joined upon it. Board of Com’rs v. Burford, 93 Ind. 883. The judgment should have been but for $32.50, and it is modified accordingly, with costs of the appeal to the defendant. The defendant cannot have judgment, because it is not apparent that the money was paid into court. Code Civ. Proc. 8 732; Taylor v. Brooklyn E. Railroad Co. 119 N. Y. 561: 30 St. Rep. 111 All concur.


author: Fursman, J.

text:
    The People ex rel. The Weed-Parsons Printing Company, Pl'ff, v. John Palmer, as Secretary of State, Def’t.

      (Supreme Court, Special Term,

      Filed September, 1895.)

    1. Mandamus — Public printing — Contract.
    Where, pursuant to section 72, chapter 688 of 1892, the secretary of state and the comptroller have entered into a contract with the relator for the public printing, other than legislative, and the secretary of state refuses to give such printing to the relator, the latter is entitled to a peremptory mandamus to compel the secretary of state to give him the printing specified in the contract.
    3. Same.
    The legislature, by the enactment of this section, intended that all public printing, other than legislative, should be done by contract as provided for by this section, and not that the secretary of state and the comptroller should contract for only a part, and the secretary of state give out the remainder to be done by whomsoever he might elect.
    Same — Defense.
    The fact that the secretary of state, prior to the execution of the contract with relator, agreed with another company for this printing, is no answer to this application where such agreement was not made in pursuance of the above statute.
    4. Same — Public contract.
    A public contract is one to which the state is a party and which concerns all its citizens, and the fact that individual rights are involved, does not change its character.
    o. Same — Right of action.
    A right of action against an officer, who ought to perform a public duty, is not an answer to a motion for a mandamus to compel its performance.
    Application for a writ of mandamus.

      Rosendale & Hessberg, for relator; W. E. Kisselburgh, Jr., dep. atty. gen., opposed.
   Fursman, J.

— The defendant is a state officer. As such, the legislature has imposed upon him certain duties. So far as concerns the present application these are to transmit to each county clerk in the state at least sixty days before my general election a sufficient number of copies of the election law to furnish one copy to each county clerk, and one to each town, village and city clerk, and each inspector of election in the county (Laws of 1892, chap. 680, § 19; to cause to be prepared a sufficient number of suitable blank books for lists and registers of voters, containing blank certificates and brief instructions for registry, and transmit a sufficient number thereof to furnish four to each board ■of inspectors in each county, except in the cities of New York and Brooklyn (Laws of 1892, chap. 680, § 40); to canse to be published title 10 of the Code of Criminal Procedure relating to criminal statistics, with forms and instructions for the execution of the duties therein prescribed, and to furnish copies annually to each county clerk for distribution among the officers therein mentioned. Code of Criminal Procedure, § 946. He is also required, in connection with the comptroller, to give in each alternate year at least twenty days’ notice in two newspapers published in each senatorial district, that on or before a day to be specified in such notice, they will receive proposals for the public printing (other than legislative) for two years, and in case a proper guaranty and satisfactory security are given, enter into a contract with the lowest bidder for the performance of such work. Laws of 1892, chap. 683, § 72. Pursuant to this law the defendant, as secretary of state, and the comptroller, on the 3d of January, 1895, entered into a contract with the relator for the public printing (other than legislative) for the two years next after January 20, 1895. This contract is in conformity with the notice theretofore given, and embraces the public printing, other than legislative, “ for the public offices of said state, and all printing for any and every of the state officers, their departments and offices,” and contains an express stipulation on the part of the state that all printing and other work required by the act above cited to be" done by contract with the state shall be given to the relator. After this contract was entered into, an appropriation was made for the payment of the printing above specified. Chap. 937, Laws of 1895. The defendant has refused to give such printing to the relator. There is no question of fact involved, and the question is, therefore, one of law whether, upon undisputed facts, the relator is entitled to a peremptory mandamus to compel the secretary of state to give the printing specified to the relator. Code of Civil Procedure, § 2070.

It was not contended on the argument that the work demanded by the relator is not public printing other than legislative, nor that it is not embraced with the contract although in the affidavit of the deputy secretary of state it is stated that he (the deputy) is “informed and believes” that such printing is not covered by such contract, but the defendant declares that in December Í894 “ an agreement was entered into between the secretary of state’s department and The Journal Company,” whereby that company was to print and deliver the books and copies of election law, etc., called for by sections 19 and 40 of chap. 680 of the Laws of 1892, and the forms and instructions required by section 948 of the Code of Criminal Procedure, and that said company has printed all of the election law “ and has very nearly if not quite completed the printing of the register books.” It is also made to appear that the secretary of state has now on hand without resort to either the Journal Company or the relator sufficient forms and instructions to enable him to comply with the requirements of section 948 of the Code of Criminal Procedure. The printing referred to is included within the requirements of section 72 of chap. 683 of the Laws of 1892 above referred to, and is covered by the contract with the relator. The legislature evidently intended to divide all public printing into two classes, th first of which should comprise legislative printing (chap. 682, Laws of 1892, article 4) and the other, embracing all otherpublic printing. Thus section 72 of chap. 683, above cited, declares “the public printing payable by the state, other than legislative printing, shall be done as follows : ” and-then provides for the notice, bids and contract above mentioned. The printing in question is not legislative printing, and is public printing payable by the state, for the payment of which the state has especially provided by the act of 1895. It is required by express law for the use of public officers to whom it must be furnished by the secretary of state, and is to be employed for the benefit of all the citizens of the state. There is no other authority for causing it to be done, nor any other method provided for doing it then that prescribed by section 72. A public officer must perform not only whatever duty is expressly imposed upon him by statute, but whatever is properly incidental thereto, in order to a complete compliance with the legislative intention. It is clear that the legislature intended that all public printing (other than legislative) should be done by contract, and that the contract for doing it should be such an one as is provided for by section 72. It was not meant that the secretary of state and comptroller should contract for only a part of it, and that the secretary of state should give out .the remainder to be done by whomsoever he might select. That would be to defeat the whole object of this section and to permit the major part of the printing to be done, not by the lowest bidder therefor, but by anyone at any price in the discretion of the secretary. The secretary of state and comptroller have seemingly put this construction upon it by expressly declaring in this contract that “the public printing other than legislative, for the public officers of said state, and all printing for any and every of the state officers, their departments and officers,” had been awarded to the relator.

The several matters provided for by the laws above referred to are to be prepared by the secretary of state and to be furnished by him to the various officers therein mentioned. This is the work of his department, the printing is for his department, and the proper distribution of the same is among the duties required of his department. The whole matter is, therefore, provided for by section 72 and is covered by the contract The fact that the defendant in December, 1894, agreed with the Journal Company for this printing, is not an answer to this application. There is no authority for such an agreement. The only agreement that can be legally made must be between the secretary of state and comptroller on behalf of the state and the lowest bidder giving approved security. It is not pretended that such agreement was made in pursuance of section 72, nor that the Journal Company was the lowest bidder for the work, nor that the comptroller had any part in making that agreement. It has been held that mandamus will lie to compel a secretary of state to furnish a copy of the laws to a person holding a valid contract for printing the same, notwithstanding the existence of a subsequent law providing for such printing by another party. State v. Barker, 4 Kan. 179; 14 Am. & Eng. Enc. of Law, page 146. And it has been held in this state that mandamus is proper to compel the performance of an official duty where such duty has been wholly omitted by the officer charged with the performance of it, where a right to require it exists in the party demanding it, and it is still possible of execution. The People ex rel. Smith v. Schiellein, 95 N. Y. 124. By causing the work to be done by the Joúrnal Company, the defendant has by no means put it out of his power to comply with the terms of the contract. The agreement with it being unauthorized that company must be left to find its compensation elsewhere than out of the moneys appropriated by the act of 1895. It is also contended by the defendant that this is an attempt on the part of the relator to enforce a private contract, that an adequate remedy at law exists if the relator is damnified, and that, there-fore, mandamus is uot a proper remedy. But this is not in any just sense a private contract. It is a contract entered into by state officers acting on behalf of a state and in which the entire people of the state are directly interested. It relates wholly to matters of public concern, and affects private rights only so far as the statute confers such rights when its provisions are carried out by the officer to whom it is confided to perform them. A private act has been defined to be “an act operating only upon particular persons and private concerns.” Bouvier’s Law Dict., vol. 2, p. 374. So a private contract may be regarded as one between individuals only and affecting only private rights, while a public contract is one in which the state is a party and which concerns all its citizens. This contract is of that kind, and the fact that individual rights are involved, does not change its character. It is difficult to conceive of any contract, unless it may be such as might exist between state and municipalities, that must not necessarily affect private rights. Such a contract where, as in this case, it is the creation of a public law, affects the whole body politic, and relates solely to matters of public interest cannot be deemed a private contract. Moveover, this application is not so much to enforce a contract as to compel the performance of a public duty — the duty of carrying into effect the intent of the legislature that the public printing shall be given to the lowest bidder and thus procured at the least possible expense to the state. Hof is the general rule that a writ of mandamus will not be issued where the party has another remedy universally followed. Ministerial officers may be compelled to exercise their functions though the party has another remedy against them by an action for neglect of duty. Buck v. City of Lockport, 6 Lans. 251: McCullock v. Mayor, etc., of Brooklyn, 23 Wend. 459. In The People ex rel. Fiedler v. Mead et al., 24 N. Y. 114, the court say (at' page 120) “ But a right of action against the officer who ought to perform the duty can never be an answer to a motion for a mandamus to compel its performance, because if this were so, the remedy would be taken away in nearly every case, for the right to an action for damages generally exists where a party is entitled to a remedy by mandamus against a ministerial officer.” See also, Noble v. Union River Logging R. R., 147 U. S. 171; Kendall v. Stokes, 3 How. U. S. Rep. 87. The same principle must apply although there may be a remedy by procedure before the board of claims. In this case it is by no means certain that the relator has any other adequate remedy. It •appears from the moving papers that the relator has acquired .appropriate machinery and material and has in its employ ■a large number of men," for the purpose of performing the work covered by its contract with the state. In a proceeding before the board of claims it could only recover the profits it would have made had it been permitted to perform the work, and in an action against the defendant for neglect of duty a recovery must be for unliquidated damages, and it is not at all clear that in either case adequate compensation for the loss really sustained could be had. The duty of the defendant is ministerial. It is (in connection with the comptroller) to enter into the contract in relation to public printing required by law, to prepare the necessary material from ■Which such printing is to be done, to deliver to the party entitled to print it, and afterwards to distribute it as the law directs. The right of the relator is to have such matter prepared and delivered to it, to the end that it may perform its contract with the state and receive the stipulated compensation therefor. The performance of this duty may be compelled and this right enforced by mandamus.

The writ should issue as prayed for, except as to the forms and instructions required by section 946 of the Code of Criminal Procedure, a sufficient number of which the defendant has on hand for distribution as above stated, but as the defendant is a public officer, no costs are allowed.


text:
    Joseph Cantor, Resp’t, v. Tattersall’s of New York, Limited, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

      ' 1. Damages — Breach oe contract.
    To authorize a recovery, beyond nominal damages, for a breach of contract, there must be evidence of plaintiff’s actual loss.

      2. New trial — Submission of case to jury.
    A new trial will he awarded when the case was so submitted to the jury that they might find a verdict on a cause of action which had been abandoned by the plaintiff and withdrawn by the court.
    Appeal from a judgment, entered in favor of plaintiff.

      A. W. Gleason, for app’lt; Samuel Ashton, for resp’t.
   Pryor, J.

— It is impossible to uphold this judgment. The complaint exhibits a cause of action for the conversion of a horse, and a cause of action for damages from a breach of contract in its sale. Although, in the beginning of the trial, the courtdenied defendant's motion to compel an election between the causes of action, yet upon the close of the evidence the plaintiff voluntarily chose to stand upon the breach of contract as the sole ground of recovery, and the court directed the jury accordingly. The contract alleged was an agreement by defendant to sell plaintiff’s horse by electric light, instead of in the daytime. The horse was sold by daylight, and, assuming that the contract was to sell at night, here was an obvious breach. But what were the damages? Evidently the loss to plaintiff by reason of the mistimed sale; in other words, the less price for the horse because of the sale by day. The only proof of damage is the general evidence that horses bring better prices on a sale by electric light than in the daytime ; but how much more is nowhere indicated in the case. The verdict finds the loss to plaintiff to be $230. This was mere guess work. We search the record in vain for a scintilla of evidence showing a loss in this sum because of the sale by daylight. A verdict for $20, or for the $5,000 in the ad damnum, clause, would stand equally well on the proof. Juries are not at liberty to mulct defendants upon speculation. Approxmate evidence, at the least, is requisite to sustain a recovery beyond nominal damages. Again, despite defendant’s objection, and subject to exception, the plaintiff was allowed to prove the value of the horse’s use while retained by the defendant; thus incorporating in the recovery compensation for the detention of the horse. But no cause of action for such recovery was alleged, and indemnity for detention is not the recompense for the wrongful sale. Still further, although plaintiff had abandoned the claim for conversion, and the court so ruled, yet, yielding to the request of counsel, the learned trial judge more "than once submitted instructions which authorized the jury to find damages for conversion. For example: “If the jury shall believe from the evidence that the defendant failed to return the horse or pay his value after the demand therefor by the plaintiff, then it would be liable in damages. ” Thus, not only is the judgment infected with positive error, but it rests upon a verdict which cannot be otherwise than the result of a misconception of the issues'by the jury. We are clear that justice requires another trial of the-cause.

New trial ordered, costs to abide the event.

All concur.


text:
    Jacob Marmonstein, Resp’t, v. Pennsylvania Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Carriers — Connecting lines — Liability for baggage.
    In an action for the loss of baggage beyond the terminus of the initial carrier’s route, it is incumbent upon the plaintiff to prove a contract by such carrier to transport beyond that terminus.
    2. Same — Proof of contract — Baggage check.
    A check merely indicating the destination of the baggage, and the different railroads over which it is to pass, is not proof of such contract.
    3. Same — Passage ticket — Knowledge of contents.
    The ticket given the owner of baggage at the time he pays for his passage, if received and kept by him, prima facia charges him with knowledge of its contents; and, if they exempt the initial company from liability on a connecting line, he cannot recover for loss of his baggage on such line.
    4. Same — Powers of baggage master.
    A baggage master, as such, has no authority to contract for carriage beyond his company’s route.
    Appeal from a judgment of the city court affirming a judgment entered on a verdict in favor of plaintiff.
    The plaintiff was one of a party transported at the expense of the Hebrew Charity Association from New York to Black Rock, Ark. They traveled under two party tickets issued by the Pennsylvania Railroad Company. The first ticket was a party ticket issued by the Pennsylvania Railroad Company for transportation from New York to St Louis,•' and it consisted of four coupons. The first coupon was of the Pennsylvania Railroad Company itself, issued by that company, over its own line and on its own account, from New York to Pittsburgh, Pa. The next coupon was issued by the Pennsylvania Railway Company, on account of the Pite burgh, Cincinnati & St. Louis Railroad Company, from Pittsburgh to Indianapolis. The next coupon was issued by the Pennsylvania Railroad Company, on account of the Vandalia Line, from Indianapolis to St. Louis. The- next coupon was issued by the Pennslyvania Railroad Company, on account of the St. Louis Bridge & Tunnel Railroad Company, from East St. Louis to St. Louis. It was expressly provided in the ticket that, in selling it for passage over other roads, the Pennsylvania Railroad Company acted only as agent, and assumed no responsibility beyond its own line. The second ticket was a party ticket issued by the Pennsylvania Railroad Company for transportation from St. Louis to Black Rock, Ark., and consisted of two coupons via the St. Louis, Iron Mountain & Southern Railroad to Hoxie, and via the Kansas City, Ft. Scott & Memphis Railroad from Hoxie to Black Rock, Ark. This ticket contained the same provision, — that the Pennsylvania Railroad Company, in selling it for passage over other roads, acted only as agent, and assumed no responsibility beyond its own line. The plaintiff had a bundle of clothes, for which he was given a check at the Desbrosses Street Ferry, in Hew York (Ho. 2,919), which stated the various lines over which the bundle was to go to Black Rock, Ark. The bundle was lost beyond the line of the defendant company.

      Henry Galbraith Ward, for app’lt; Morris Cukor, for resp’t.
   Pryor, J.

— Whatever the law in other jurisdictions, it is settled in this state that “the receipt of goods marked for a place beyond the terminus of the carrier’s route does not import a contract to carry them to their final destination. Such a contract will not be inferred from the simple address of the goods. There must be other facts and circumstances sufficient to show a special contract.” Condit v. Railroad Co., 54 N. Y. 500, 502; Berg v. Steamship Co., 5 Daly, 394; Rawson v. Holland, 59 N. Y. 611; Jennings v. Grand Trunk Railway Co., 127 id. 438; 40 St. Rep. 318. The principle is so prevalent in the United States as to be denominated the “ American Rule,” in distinction from the English doctrine. Note to Wells v. Thomas, 72 Am. Dec. 236. Before, therefore, the defendant could be affected with liability for the loss of the baggage on the connecting line, it was incumbent upon the plaintiff to prove that the defendant had engaged to transport the passenger beyond its route. It is only when the carrier so contracts that he must show a limitation of liis common law liability. Jennings v. Grand Trunk Railway Co., 127 N. Y. 438; 40 St. Rep. 318. But the trial court disregarded the presumption of irresponsibility in favor of the initial carrier, and instructed the jury that the burden was upon the defendant to prove that by a special agreement it was exempt from liability, except for loss upon its own line. Thus, in the opening sentence of his charge, the' learned judge said that “the Pennsylvania Railroad Company as a common carrier, has the right to limit its liability by limitations on its ticket; but, before they become binding upon a person treating with the railroad as a common carrier, there must be some notice brought to that person.” Again, in response to a request to charge that “the defendant is not liable for any loss o£ plaintiff’s baggage, except such as happened when it was in defendant’s custody,” the court answered: “I decline to charged that except as I have charged. I have charged as to what would relieve them, and what would not relieve them.” Throughout the charge it is assumed that, to defeat the action, it was obligatory upon the defendant to show an assent by the plaintiff to exempt-it from liability on a connecting line. Indeed, whether such assent had been established was the only issue, besides the damages submitted to the jury for determination : “If you ñnd that there-was a binding contract (to exempt the defendant), then the plaintiff cannot recover. If you li-nd that it was not, then the plaintiff can recover.” The issue was not in the case. The question was not whether the defendant had stipulated for release from the prima facie liability as common carrier, but whether it had contracted to be a carrier beyond its own terminus; and this issue was never before the jury. With such a radical misconception by the j ury of the action and the issue, a correct verdict would be but a happy accident.

Irrespective of the charge, the appeal depends upon whether the evidence authorized the jury to find a contract by defendant to carry beyond its terminus. The baggage check was not, but the passage ticket was, evidence of such contract. Hyman v. Central V. Railroad Co., 49 St. Rep. 313; Isaacson v. Railroad Co., 94 N. Y. 278; Milnor v. Railroad Co., 53 id. 363, 368, 369; Quimby v. Vanderbilt, 17 id. 306, 314. In the Milnor Case, the court said: “The face of each ticket spoke for itself. One was the defendant’s ticket, and the other was a Housatonic ticket; and persons purchasing such tickets would not infer that the defendant was operating the latter road, or had any other arrangement than an agency to sell tickets.” In the Quimby Case, perDENio, J.: “We do not say that the receiving of separate tickets for the different lines is not evidence of some weight upon the question whether the contract was entire.” The passage ticket, in terms, was on account. of the connecting lines, and expressly stipulated against a liability for loss on those lines.

The court charged, and plaintiff now insists, that, to constitute the ticket a contract, its limitations must have been known and assented to by him, and that this fact must be established by the defendant. True, perhaps, of a restriction upon a carrier’s common-law liability on its own route; and all the cases cited by plaintiff are authority only for that proposition. But, as we have said, the question here is whether the defendant undertook to-transport over the connecting lines. The presumption is of a carrier’s common-law liability for goods in his custody; and to escape-this prima facie responsibility, the cases require a special contract. The presumption is against a carrier’s responsibility for other companies ; and to impose such liability, an agreement to assume it must be shown. It was for the plaintiff, therefore, to prove a contract with the defendant to carry his baggage beyond its terminus ; and if the passage ticket constituted no such contract, what is the evidence of its existence ? In all cases in which such a oontract has been found, there were circumstances authorizing the inference of the contract; but here is nothing, besides the ultra-terminal destination, and the baggage check indicating that destination. This scintilla of proof, if such it be, is clearly insufficient to overcome the presumption of the defendant's exemption from the imputed liability. If, then, the passage ticket be no contract, because of plaintiff’s nonassent to its terms, there is no-evidence of defendant’s agreement to carry beyond its route. If the ticket be such contract to carry, it is an agent only, with an express exoneration of defendant from the liability attempted to be fastened upon it.

The argument hitherto has proceeded on the postulate that the plaintiff had no notice of the terms of the passage ticket, but he himself testifies he knew it well enough to indentify it on the trial. And the Hebrew Charity Association, his admitted agent in the purchase of the ticket, had such custody of it as to warrant the inference of an acquaintance with its conditions. In Steers v. Steamship Co., 57 N. Y. 1, the court of appeals says:

“The rule that in the absence of fraud, concealment, or improper practice (and none such is imputed to this • defendant) the legal presumption is that stipulation contained in a common carrier's receipt for freight limiting his common-law liability, were known and assented to by the person receiving it, applies to the carriers of passengers with their baggage.”

If such presumption prevails to overcome the common-law liability of a carrier on his own route, a fortiori is it sufficient to repel the inference that he has assumed a liability against which another presumption already operates?

Failing all other resources, the plaintiff adduces a conversation with defendant’s baggage master as evidence of a contract to carry beyond its terminus. Seeing the names of other companies on the check, plaintiff asked the baggage master: “How is this?/’He answered: “ Do not be afraid. The Pennsylvania Bailroad will bring you to Black Bock, Arkansas.” That this was no contract is apparent upon several grounds : First, it does not purport to be such; secondly, the contract for the carriage of plaintiff was "already complete, — Lechowitzer v. Hamburg A. Packet Co., 59 St. Rep. 486; and thirdly, “in the absence of special authority, a baggage master cannot bind the company by a contract to carry baggage beyond the terminus of its road.” Isaacson v. Railroad Co., 94 N. Y. 278, — in which case, be it observed, the point decided is not repugnant to the dictum.

The conclusion is that the trial court erred in declining to dismiss the complaint, and in its charge to the jury.

Judgment and order reversed, and new trial granted, with costs to abide the event.

All concur.


author: Daly, Ch. J.

text:
    David McAveney, App’lt, v. Thomas H. Brush et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

      1. Contempt — Bond to discharge mechanic’s lien.
    The giving of a bond, with fictitious and insufficient sureties, to discharge a mechanic’s lien, is punishable as a contempt of court,
    3. Same — Punishment.
    A party, who has put in a fictitious surety in such case, may be required to pay into court a sum equal to the amount of the bond, to be held for the benefit of the lienor in case of his eventual recovery in the action.
    Appeal from an order, denying a motion to punish the defendant for contempt.

      Welch & Daniels (George S. Daniels, of counsel), for app’lt; John Brush (Hector M. Hitchings, of counsel), for resp’ts.
   Daly, Ch. J.

— The plaintiff applied at the special term to punish the defendant Thomas H. Brush for contempt for his misconduct in putting in, or causing to be put in, fictitious and insufficient sureties upon an undertaking dated November 15, 1892, given to discharge a mechanic’s lien filed by the plaintiff on the 5th day of November, 1892, for $6,910, on property on the south side of Sixty-third street between Columbus avenue and the Boulevard in the city of New York, and also for causing and procuring said sureties to put in false affidavits regarding their sufficiency, and for the deceit and abuse of the proceedings of this court on discharging said mechanic’s lien. The application is made in this action, which is brought for the foreclosure of the said lien, and is still pending, being on trial before a referee, to whom all the issues in the action were referred. It is contended by the defendant Brush that, as the lienor has not yet established his right to a lien and to a judgment of foreclosure, no right or remedy can be adjudged to have been affected within the provisions of the.Code, which restricts the power of the court to punish the misconduct to cases in which the right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, ■or prejudiced. It is not alone a right of the lienor in his action of foreclosure which is affected injuriously by the discharge of alien upon a worthless bond. The discharge of the lien is itself a proceeding under the mechanics lien act, and it is the lienors’s right and remedy in that proceeding which are also defeated by the giving of the worthless bond. The lien act prescribes a direction by the court, on the application of the owner of the premises, or the person against whom the notice of lien is filed, fixing the amount of the bond, which shall not be less than the amount claimed in the lien, and for the execution of said bond with two or more sufficient sureties, who shall be freeholders, conditioned for the payment of any judgment which may be rendered against the property. It is also prescribed that the sureties must justify in at least double the sum named in the bond, and that a copy of the bond, with notice that the sureties will justify before the court or a judge thereof at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney ; and an order discharging the lien may be made by the court or a judge thereof upon the approval of the said bond. Mechanic’s Lien Act of 1885, chap. 342, § 24, subd. 6. The party instituting the proceeding for the discharge of the lien has a right to such discharge upon giving of the proper bond with sufficient .sureties, and the right of the lienor whose bond is so discharged is to have a proper bond with sufficient sureties. The bond is to take the place of the property, and the law contemplates substantial security to the lienor. When such bond is given, the validity ■of the lien is assumed, and the right of the lienor to complete •security in place of the land is unquestionable. He is as much entitled to sufficient sureties as he is to a proper form of bond ; and it follows that to offer fictitious sureties is to completely defeat his right in that proceeding, and he is entitled to immediate redress, and to all the remedies enforceable by the proceedings for a contempt.

In this case the defendant Thomas H. Brush, the owner of the premises, and liable personally for the plaintiff's claim, instituted the proceeding to discontinue the lien by the giving of a bond in the penal sum of $8,000 with two sureties, viz. Mrs. Eliza A. Brush, his mother, and one Charles F. Averill, who respectively justified in affidavits stating that they were each a resident and freeholder within the state, and worth the sum of $16,000 over and above all their debts and liabilities. The said sureties justified before the court upon notice. Mrs. Brush claimed to be the owner of premises 155 Lafayette avenue in the city of Brooklyn, which she said were worth $40,000, subject to a mortgage of $13,000, and which were purchased by her seventeen or eighteen years before, from one Barber, for about $29,000, Averill swore that he owned 365 Lafayette avenue in the city of Brooklyn; that it was worth $40,000, and was subject to a mortgage for $20,000; that he also owned 349 and 351 Lafayette avenue in said city, worth $40,-■000, and subject to a mortgage of $20,000 ; and owned real estate, without incumbrances, situated at Massepequa, L. I., worth $8,000; and that the Lafayette avenue properties were conveyed to him on November 5, 1892, by the defendant Brush, a portion of the consideration being in trade and $13,000 in cash. The plaintiff’s lien was discharged by an order of the court upon the approval of the above bond, and the only recourse of the plaintiff was then against the sureties upon the bond, which took the place of the property. It now appears that the surety Averill is wholly insufficient; that he is not worth the amount of the bond instead of being worth double its penalty ; and the plaintiff claims that such was the condition of both sureties at the time of their justification ; that Brush knew it, and offered them as sureties for the purpose of depriving plaintiff of his lien, and of any security in place thereof. The facts disclosed by the proofs show that the plaintiff has actually been deprived of his right to his lien and of the remedies by the insufficiency of at least one of the sureties, and the evidence tends to support his claim that the condition of such surety was no better on November 21, 1892, when lie justified, than it is at present. It appears that Mrs. Brash owned 155 Lafayette avenue, but that it wasoonveved to her by her son, and not by Barber, and the consideration was $20,000, and not $29,000. It appears that in less than a year after she justified as surety, she conveyed the property to her sister, in order to have a change of mortgages upon it, and that the mortgage incumbrances were increased from $13,-000 to $17,100, and then the property was conveyed back to. her. There are experts who swear that the value of this property is from $30,000 to 31,000. It appears that the surety,. Averill, has absolutely nothing to show for the $48,000 equity in his several pieces of real estate upon which he justified upon November 21, 1892. He swore that 365 Lafayette avenue, mortgage! for $20,000, was worth $40,000. The mortgage was foreclosed, and it was sold on February 21, 1894, for $14,000. He ..wore that Nos. 349 and 351, mortgaged for $20,000, were worth $40,000. The mortgage was foreclosed, and they were sold in February, 1894, for $19.000. It also appears that the deed or deeds to him from Brush, by which he acquired said property, were never placed upon record. It appears that the Massepequa, property was conveyed by the company, of whieii defendant-Brush was the president, to him, for the nominal consideration of $1, and that ten days after his justification he conveyed it to his wife for the consideration of $4,800. Judgments for deficiency against him. upon the mortgage foreclosures baVe been entered, and execution against liim upon another judgment has been returned unsatisfied. Real estate experts called bv defendants testified that there has been a shrinkage of values in Brooklyn of fifteen to twenty per cent, since the time of Averill’s justification, but this does not explain the difference of fifty to sixty per cent, between the values as sworn to by him and the amounts the premises brought on foreclosure.

While every indulgence should be extended to sureties in the matter of honest opinions as to the value of their properties, it appears in the case of Averill that he was a worthless surety. All the property he appears to have had was conveyed to him by Brush immediately before the justification, and evidently for the purpose of justifying upon it; and it is manifest that Brush was well aware of his condition, and of the value of said property. Under these circumstances, it would seem that the lienor, in a proper proceeding, is entitled to have the defendant Brash adjudged for contempt for putting in an insufficient surety, and that the amount of the fine to be inflicted upon him should be such as to restore or protect the rights of the lienor which have been prejudiced by such misconduct. I regard it as within the power of the court to require a party who has put in a fictitious surety to pay into court a sum equal to the amount of the bond, to be held for the benefit of the lienor in case of his eventual recovery in the action.' The'Code, section 2284, prescribes that, if actual loss or injury lias been produced to a party by the misconduct proved, a fine sufficient to indemnify him may be imposed, collected and paid over to the aggrieved party under the direction of the court. The actual loss or injury to the lienor is the discharge of his lien by the giving of the worthless bond, or a bond with a worthless surety, and the only fine sufficient to indemnify him must be one equal to the surety afforded by a good bond and a good surety. In Cunningham v. Hatch, 3 Misc. Rep. 101; 51 St. Rep. 859, a mechanic’s lien was discharged, after suit brought, by a deposit with the county clerk under the same section of the mechanic’s lieu act (subd. 3). A default was taken in the action, and the deposit with the county clerk withdrawn. The default was opened, and the judgment entered thereon vacated, and an order made requiring the defendant withdrawing the deposit to deposit the same with the county clerk: and it was held that the court had power to compel opedience to its order by proceedings for contempt. In every case where the party giving a bond or making a deposit to discharge a lien is guilty of that misconduct which deprives the lienor of his security, the latter has the right to invoke the power of the court to make the security good. In the case of a fictitious surety it can only be done by imposing a fine to the amount of the bond. The fine, when collected, will be paid into court, and used to satisfy any judgment which the lienor may recover in his action to enforce his lien. If he is defeated in the action, the money will be repaid to the party from whom it was collected. The provisions of the Code above cited, section 2284, provide for such a case by directing that the fine be collected and paid to the aggrieved party under the direction of the court. The order appealed from is reversed, i and the defendant Thomas Brush adjudged in contempt for misconduct in having put in fictitious and insufficient surety, and for the abuse of the proceeding of the court in reference to the discharge of the plaintiff’s lien ; and a fine of $8,000, the amount of "the bond, is imposed upon him for such misconduct, such amount to be collected and paid into court subject to the order of the court in this action.

All concur.