text:
    JOHN H. BURNS, Appellant, v. THE CITY OF SCHENECTADY, Respondent.

      Evidence — the fact that other persona home been injured by the dbsti'uction complained of, when admissible — when am objection cannot be fw'st taken on appeal.

    In an action to recover damages for an injury sustained by the plaintiff in falling over a water-gate projecting from the sidewalk in one of the streets of the defendant, a witness for the plaintiff having testified that he knew of the existence of the water-gate at the place where the plaintiff fell, for some year and a-half before the accident, was asked, “Did you ever know of anybody falling over there before?” Upon the defendant’s objecting that the evidence was immaterial and irrelevant, the court excluded it.

      Held, that this was error.

      Held', further, that the defendant could not insist upon the appeal that the evidence was properly rejected on the ground that it did not appear when such other falls had occurred, or that the condition of the water-gate was the same as at the time of the accident, as such grounds of objection were not stated at the trial.
    Appeal from a judgment in favor of tlie defendant entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before whom the action was tried.

      Samuel T. Benedict and E. W. Paige, for the appellant.

      S. W. Jackson, for the respondent.
   Boardman, J.:

This case comes up on two exceptions taken upon the trial to rulings of the court excluding evidence. The action was brought to recover damages sustained by falling over a water-gate projecting from the sidewalk in one of the streets of Schenectady. The evidence is not returned. A brief statement is made showing what the evidence tended to establish and how the question arose. A witness for plaintiff testified that he had known of this water-gate where plaintiff fell for a year and a-half or so, and was then asked by plaintiff this question, Did you ever know of anybody falling over there before ? ” Objected to by defendant and objection sustained. Plaintiff excepted.

Question. Have you known of anybody falling over the same water-gate before ? ”

Objected to as immaterial and irrelevant. Objection sustained and plaintiff excepted.

The evidence called for by these questions was competent. (Quinlan v. The City of Utica, 11 Hun, 217, aff’d in the Ct. of App., 74 N. Y., 603; Eggleston v. Columbia Turnpike Road, 18 Hun, 146.) This last ease was reversed in the Court of Appeals, October, 1880 (10 W. D., 561), but not upon any point raised in this court.

The counsel for defendant attempts to sustain the.ruling of the court upon the ground that it did not appear when such other falls occurred, or that the condition of the water-gate and sidewalk was then the same as at the time of plaintiff’s fall. There are two answers to this position.

First. The evidence is not returned. "We are not advised what evidence had been given. Won constat such evidence may have been in the case.

Second. The objections are not such as will raise such a question. Where the grounds of an objection could be obviated by other evi. dence, the grounds must be stated that the party may cure the defect-It is only when the evidence cannot be admitted in any view of the case that a general objection will be sufficient. The testimony was not immaterial or irrelevant if a proper foundation was first laid for it. (Merritt v. Seaman, 6 N. Y., 168; Fountain v. Pettee, 38 id., 184.)

Besides it may well be that tbe evidence asked for would have fixed the time of other falls at about the time plaintiff fell.

The judgment must be reversed and a new trial granted, eosts to abide the event.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

author: Boardman, J.:

license: Public Domain

text:
    RACHEL SAULSBURY, Respondent, v. THE VILLAGE OF ITHACA, Appellant.

      Village — is not bound, to construct a sidewalk in each street — when it is not liable for the negligence of am, individual in constructing one fon' his own use.

    This action was brought by the plaintiff to recover damages for injuries sustained by falling upon a sidewalk in Brindley street, in the village of Ithaca, and from it into an open space over which it passed. The street became such by dedication some forty years before the accident. Some ten years prior thereto railroad tracks were laid therein, and from that time it had been but little, if at all, used as a highway. The village had never built, or ordered to be built, a sidewalk along the street. About a year before the accident one Turner, who owned a house and lot on the street, built the sidewalk to enable his tenants to go to and from his house to State street.

      Held, that as the sidewalk was not built by or under the direction of the village, it was not liable for an accident arising from its unsafe condition, and that the action could not be maintained.
    Upon the cross-examination of the plaintiff’s attorney upon the trial he was asked how much of the judgment was to be his in case of success. An objection to this question was sustained by the court, to which ruling the defendant excepted.

      Held, that the exception was not well taken as the question related to a collateral issue, and that the extent of the cross-examination was in the discretion of the court.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      8. D. HalUday, for the appellant.

      F. F. Tibbetts, for the respondent.
   Boardman, J.:

The plaintiff was injured by falling upon a sidewalk on the east side of Brindley street, in Ithaca, and from the sidewalk into an open space over which the sidewalk passed. The action was brought to recover damages for such injury. Brindley street became such by dedication forty years ago. Though but little used, enough was done by defendant to constitute an acceptance of the dedication. About ten years ago the street was occupied by railroad tracks, and since then has been but little, if at all, used as a highway.

The defendant had never built or ordered built any sidewalk along the street. But a year or more before this accident, one Turner, who owned a house and lot on the east side of Brindley street, built this sidewalk to enable his tenants to go thereby to and from State street. At the point where this accident occurred the sidewalk was elevated three or four feet above an old cellar or excavation, into which plaintiff fell after first falling upon the sidewalk. It is conceded that defendant never aided or contributed to the building, maintenance or repair of this sidewalk, or of any other sidewalk at that place, nor had it ever ordered this or any other sidewalk to be built upon that street.

Under these facts, the defendant claims that the building of a sidewalk along Brindley street was within its discretion, and that it is not liable in a private action for omission to exercise discretionary functions for the benefit of the public at large. Or, to use the language of Judge Dillon (2 Mun. Corps., § 753), “Where a corporation has a discretion as to the time and manner of making corporate improvements, * * * a private action will not lie against the corporation for omitting or neglecting to act; and the reason is, that such powers are conferred to be exercised or not, as the public interest is deemed to require.” (See cases cited in note 1 to the section; also, Wharton on Neg., § 260; Hines v. The City of Lockport, 50 N. Y., 236, affirming S. C., 5 Lans., 16; Mills v. City of Brooklyn, 32 N. Y., 489.)

The counsel for the plaintiff, by his brief, concedes that the board of trustees would not be liable for an actual determination of a matter within' their judicial discretion, if injury resulted to any one thereby. But the learned counsel does not go far enough in the application of the principle.

By the defendants charter (title 6, § 1), the board of trustees have all the powers of commissioners of highways of town, and besides have the power to construct, etc., highways, sidewalks, drains and sewers in said village. (Laws of 1864, chap. 257, as amended in 1871, chap. 190; and 1875, chap. 237.) By the authorities cited, the power to do these things is of a judicial nature. The trustees may decide to do them or not, as in their judgment the public interests require. If the decision is not to build, or if no action whatever is taken, no liability can accrue to the corporation by the omission. If the decision is to build, and the work is done, the corporation becomes responsible for any negligence or unskillfulness in the manner in which it is done, and for any negligence in maintaining it in a safe condition thereafter.

In the present case no decision has ever been made to improve this street by the building of a sidewalk, and none has ever been built by the defendant or under its authority.

The act of Turner in building a walk to his tenant house from State street was his act, and not the act of defendant. It was not an obstruction to the street calling for the action of the trastees to remove it. It was not an illegal use of the street on the part of Turner to which defendant could object. If the work was unskillfully or negligently done, or if it was allowed to remain in an unsafe condition, it was not the fault of defendant. The defendant is' not connected with the walk so as to create any liability by reason of its condition. A liability for negligence can be established against a municipality only by showing negligence, actual or constructive, by its officers or authority. In this case it is not shown.

The counsel for plaintiff contends that it is an absolute duty of a village or city to build sidewalks wherever it has streets. But such cannot be the law. The authorities exercise a discretion, judicial in its nature, having reference to the public benefit, and they cannot be made liable by the careless or heedless act of some third party who has chosen to do something for his own supposed benefit without infringing upon any right of the public. Upon the facts now presented we think the plaintiff was not entitled to recover.

Having reached this conclusion it is not necessary to consider the sufficiency of the evidence to justify the findings of fact.

The attorney for the plaintiff being a witness was on cross-examination asked how much of the judgment was to be his in case of success ? An objection to the evidence was sustained and defendant excepted.

The exception was not well taken. King v. N. Y. C. and H. R. R. R. Co. (72 N. Y., 607, 611) holds that it was a collateral issue, and that in such case the extent of the cross-examination was in the discretion of the court.

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

Present — Learned, P.J., Bookes and Boardman, JJ.

Judgment reversed, new trial granted, costs to abide event.


text:
    SARAH E. BETSINGER, Respondent, v. B. FRANKLIN CHAPMAN and NICHOLAS N. BETSINGER, as Administrators, etc., Appellants.

      Widow — xohen included in the term next of kin — 3 B. 8., 114, §§ 9 and 10.
    Although a widow is not entitled to a share in the estate of her deceased husband as one of his next of kin, yet she is included in that term as used in sections 9 and 10 of 3 Revised Statutes, 114, authorizing an action to be brought “by any legatee, or by ahy of the next of kin entitled to share in the distribution of the estate,” against the executor or administrator thereof, to recover his legacy or distributive share.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action was brought by the plaintiff against the defendants, as administrators of the estate of Peter Betsinger, deceased, to recover her distributive share of his estate as his widow, under sections 9 and 10, title 6, chapter 6, part 2 of the Revised Statutes.
    The plaintiff claimed that she was married to the defendants’ intestate on the 24th day of May, 1863, while the defendants claimed that the marriage did not take place until January 20,1864, and that prior to such marriage, viz., January 19,1864, the plaintiff entered into an ante-nuptial agreement with the intestate whereby she was to receive $200 at his death in lieu of dower and of all demands and claims against the property and estate of the said intestate.
    This action has been twice tried. The first trial was had before the court, without a jury, at the Madison Circuit, in February, 1879. The court found the facts as claimed by the plaintiff in her complaint, and upon such findings judgment was entered in favor of the plaintiff against the defendants for the sum of' $16,908.76, including costs. The defendants appealed from that judgment to the General Term, where the judgment was reversed and a second trial granted, costs to abide the event. The case came on again for trial on the 16th day of June, 1880, at the Madison Circuit, before Justice Follett and a jury, and a verdict was found for the plaintiff for the sum of $15,105.
    The defendants’ counsel made a motion for a new trial on the judge’s minutes, which was denied, and the defendants appealed from the order denying a new trial to this court.
    At the close of the evidence, the defendants’ counsel moved for a nonsuit on the following grounds:
    1. That the plaintiff was not entitled to maintain this action under the statute, because she is neither a legatee or next of kin, and that the widow is not entitled to bring this action.
    2. On the whole case, the court should direct a verdict for the defendants on the ground that the proof is not sufficient to entitle the plaintiff to go to the jury, and not sufficient in law to authorize the plaintiff to recover.
    The court denied the motion.

      C. B. Sedgwick, for the appellants.
    Shoecraft, Bermett & Tuttle, for the respondent.
   Boardman, J.:

This action was first tried before a justice of this court without a jury. The judgment rendered upon that decision was reversed upon the facts and a new trial granted. It was then the duty of this court to review the findings of facts and to reverse if it believed them erroneous. The case has been again tried, this time before a jury, and a verdict rendered for the plaintiff. An appeal is now taken from an order of the court refusing to grant a. new trial. A different rule now controls the disposition of this last appeal. Before, we were at liberty to weigh the evidence and judge for ourselves whether it was rightly decided. Now, if we find any evidence from which the jury might have legally inferred a marriage between intestate and the plaintiff, in May, 1863, she was entitled to have that issue submitted to the jury. This distinction between a trial by the court and a trial by a jury is too well established to need citations of authorities. The verdict of vhe jury as to any matter properly submitted is conclusive, in the absence of passion, prejudice or corruption.

After a decision in plaintiff’s favor first by a learned justice of this court and afterwards by the verdict of a jury, it would be unreasonable to suppose there was no evidence upon which such verdict could stand. In fact the reading of the evidence shows a very considerable amount of evidence which legitimately tends to establish a marriage in May, 1863. A good part of it consists of the declarations and conduct of the parties. Some of this evidence is very weak and some of it uncertain in its significance. The inferences that might he drawn therefrom are seriously attacked by the proof of the later marriage and by the execution by the plaintiff, just prior thereto, of an ante-nuptial contract, reciting therein that she and the intestate were about to be married. This conduct, so inconsistent with the theory and allegation of a marriage many months before, is answered by intestate’s declarations showing possible motives therefor. Some new evidence is produced on the second trial on behalf of the plaintiff, which if believed by the jury would, and doubtless did strengthen her case. But it is not for us now to indicate any opinion upon the weight of evidence or the correctness of the verdict. It is sufficient to say it was a question of fact properly submitted to the jury upon competent evidence. Their verdict concludes us upon the facts.

The appellants, however, insist that the plaintiff cannot maintain this action because the right of action is only given by statute to legatees and next of kin (2 R. S., 114 [Edm. ed., 118], §§ 9 and 10), which provides that the administrator shall be liable ” in such cases for distributive share, to such action as the case may require at the suit of the legatee or next of kin ” entitled to distributive share of estate. The widow is not strictly one of the next of kin, and’So it is contended she has no right of action given her for her distributive share.

The cases which hold that the widow is not next of kin relate to her right to take as distributee of the estate. (Murdock v. Ward, 67 N. Y., 387; Garrick v. Camden, 14 Vesey, Jr., 372; Dickins v. N. Y. C. R. R., 23 N. Y., 158; Luce v. Dunham, 69 id., 36; reversing S. C., 7 Hun, 202; Keteltas v. Keteltas, 72 N. Y., 312.) In these and other similar cases the question was : Can the widow take a share of the estate under the designation of next of kin ? and it was held she could not. . This relates to the right.

In the case under consideration the question is, can the widow, under the designation of next of kin in the statute, maintain an action to recover a distributive share of an estate which the statute clearly gives her ? This relates to the remedy and will be controlled by the object and intent of the statute.

By section 42 of 2 Revised Statutes, 90, it is provided that any creditor who may have neglected to present his claims as aforesaid, may, notwithstanding, recover the same in the manner prescribed by law of the next of kin and legatees of the deceased, to whom any assets shall have been paid or distributed.”

Hhder this statute it was held that the words “ next of kin,” were not used in their strict legal sense of blood relatives, but were plainly intended to include all those who had received assets of the estate and, therefore, included the widow. Therefore the widow was held liable in an action against her under said section. (Merchants’ Ins. Co. v. Hinman, 15 How. Pr., 182.) Upon appeal to the General Term, the decision of. the Special Term was affirmed in the respect stated. (S. C., 34 Barb., 410.) This case is recognized as properly decided in Murdock v. Ward (67 N. Y., 390), where the opposite rule is applied to a case for distribution.

The distinction between the two cases is also quite elaborately discussed by Sutherland, J., in Slosson v. Lynch (N. Y. General Term, 28 How. Pr., 417, 422), in Dewey v. Goodnough (56 Barb., 58); Foster, J., making the same distinction, says: “ Where the statute is intended to enforce a clear moral obligation * * * it is enough if the case be within the spirit of the statute,” citing Merchants’ Ins. Co. v. Hinman (supra).

Without further reference to authorities, we conclude it was the spirit and intent of the statute to give all - persons entitled to a distributive share in the hands of an administrator a right of action therefor. Hence it must follow that this action was properly brought by the widow against the administrators, defendants.

The evidence of Mrs. Remington was excessively weak. It can scarcely be considered evidence of anything. Still it would have been proper for the plaintiff to have proved that her husband was applied to on Sunday, May 24, 1863, to go down to the tavern and marry a couple. Such evidence, in connection with the age and personal appearance of the person applying, would have corroborated the plaintiff’s case. The attempt was made, but a rigid cross-examination betrayed the weakness, if not worthlessness, of the evidence given. We do not see, however, that any error was committed in the admission of such testimony, for which a new trial should be granted. No other grounds of error are urged.

The order denying a motion for a new trial should, therefore, be affirmed, with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order affirmed with costs.


text:
    EDWARD P. McKINNEY and CHARLES A. EVARTS, Respondents, v. HUGH J. JEWETT, as Receiver, etc., of the Erie Railway Company, Appellant.

      Common carrier — duty of, to notify consignee of the arrival of goods — when liable for a neglect so to do — when a MU of lading does not relieve him from liability for a loss caused by his negligence.

    On March 4, 1876, a car-load of hams and shoulders was shipped to plaintiffs at, Binghamton, at which place it arrived at 11:40 A. M. on March ninth, and was there run upon a side track where it remained until 5 p. M. of Saturday, March eleventh. The plaintiffs, who had repeatedly inquired for the car-load on Thursday, Ikiday and Saturday, being unable to remove them on Saturday without great risk and by working at night and on Sunday, did not remove them to their store until Monday, when they were found to have been greatly injured by the heat, the damage having been occasioned after Thursday. The defendant was in the habit of notifying consignees of the arrival of goods by putting a receipt therefor in a pigeon-hole accessible to the consignees or their agents. In this case the notice was not put into the pigeon-hole until late on Saturday afternoon.
    The bill of lading under which the goods were shipped provided that the defendant would “ not be responsible for goods while at any station awaiting delivery, * * * nor for decay of perishable articles, nor for damages arising from heat or cold, or where occasioned by providential causes or by fire, * * * nor for delays from unavoidable causes.”
    In an action by the plaintiffs to recover damages for the injuries sustained by the heating of the hams, held, that the damages were caused by the negligence of the defendant in failing to deliver the hams and give the customary notice of their arrival to the consignees.
    That the bill of lading did not relieve the defendant from liability for damages occasioned by his own negligence.
    That the plaintiffs were entitled to recover.
    Appeal from an order denying a motion for a new trial made upon a case and exceptions, after a verdiqt rendered in favor of the plaintiffs.

      Chapman & Lyon, for the appellant.

      William A. McKinney and Isaac Newton, for the respondents.
   Boardman, J.:

On the 4th day of March, 1876, the plaintiffs by their agents purchased and shipped over defendant’s road a car load of hams and shoulders consigned to plaintiffs at Binghamton, New York. The car arrived at Binghamton in due time, to wit., on March ninth, at 11.40 a. m., and was run upon a side track where it remained until 5 o’clock p. m. of Saturday, March eleventh.' It being then too late to remove the cargo in business hours, or at all without great risk, except by working in the night and on Sunday, the plaintiff did not remove the hams and shoulders to their store until Monday the thirteenth, when they were found to be greatly injured by the heat. The amount of the damage as fixed by the verdict is $1,400. On Thursday, Friday and Saturday the cartman of plaintiffs repeatedly inquired for this car load of meats and made search for it. He found no trace of it until late Saturday p. m., when lie was notified of the arrival. The practice of defendant was and bad long been to give notice of tbe arrival of freight by putting a receipt in a pigeon-hole, where tbe consignees or their agents could see tbe same. That should have been done on Thursday in tbe present case, but in fact it was not done until late Saturday afternoon. Tbe damage to tbe meats occurred after Thursday. If tbe receipt bad been put in the pigeon-hole on Thursday plaintiff would have known it on that day.

Tbe neglect to inform plaintiff’s cartman of tbe arrival, tbe running this car upon a side track and leaving it there for more than two days after its arrival, and tbe failure to give the usual notice of arrival by putting tbe receipt in tbe pigeon bole according to tbe known and uniform custom of doing such business, constitute tbe basis of plaintiff’s claim to recover damages.

Tbe defense relies upon a bill of lading given by tbe railroad company at Chicago to plaintiff’s agents at Chicago, two days after tbe shipment of tbe meats and when they were well on tbe way to Binghamton. Tbe bill of lading gives notice that railroad company will not be responsible as common carriers for said goods while at any station awaiting delivery * * nor for decay of perishable articles, nor for damages arising from beat or cold, or where occasioned by providential causes, or by fire, from any cause whatever, * * nor for delays from unavoidable causes.

It is seen, here are no words limiting tbe liability of defendant, in case of bis or bis agent’s negligence, for damages which may be caused thereby. To be relieved from such liability tbe contract must be clear and specific. It presents once more tbe troublesome question bow far may common carriers exempt themselves from their common-law liability for their own negligence by special contract. It is not clear that it is an open question in this State. By various decisions of our Court of Appeals it would seem that a company might lawfully contract as a common carrier to be relieved from its own negligence. (Mynard v. S. B. and N. Y. R. R. Co., 71 N. Y., 180; Magnin v. Dinsmore, 56 id. 174; Hill v. S. B. and N. Y. R. R., 73 id., 351.) Tbe case of Nicholas v. New York Central and Hudson River Railroad Company (4Hun, 327) cannot be regarded as a safe authority to follow. After having been once affirmed by Court of Appeals on a tie vote, a reargument has been ordered, and upon such reargument the court were, as is understood, again equally-divided. It is now upon a second reargument before that court for decision.

It will, we think, prove a matter to be regretted if it shall finally be held that common carriers can stipulate for exemption from liability for their own negligence. The rule of the Supreme Court of United States seems more just and reasonable. (Railroad Co. v. Lockwood, 11 Wall., 357, holding such agreements invalid.) And such is held to be the law in almost all American courts. (Wharton on Neg., § 589, and authorities cited in note.) The subject is regulated by statute in England. (17 and 18 Vict., ch. 31, § 7; Wharton on Neg., § 591.)

But perhaps that question is not involved in the present case. It is claimed by the plaintiffs, first, that the bill of lading does not exempt the defendant from liability for his own or his servant’s negligence; and, secondly, that the injury suffered by plaintiffs is wholly due to the carelessness and negligence of the defendant and his agents. Both propositions, we think, are well founded.

By reference to the cases we have cited, it will be seen that exemption from negligence must be clearly and unequivocally stipulated for in the contract. It will not be presumed or inferred from doubtful or ambiguous expressions. In this case it is not expressly stated in the bill of lading, nor is there any language used from which we may fairly infer, that such a purpose existed or could fairly be understood. The defendant must then be held liable if the damages were the result of negligence.

It is equally clear that the injury was solely due to negligence. The goods were not at a station awaiting delivery while they were switched off on a side track, and the plaintiffs on inquiry for them could not learn that they had arrived. Besides, the custom of the defendant was to give a certain kind of notice by receipt, placed in a pigeon-hole accessible to plaintiff and operating as notice to them. Until such notice was given according to custom, and the goods were accessible, they were not at a station awaiting delivery. If decay or damage from heat or cold occurred without any negligence, the defendant would not be liable. But if decay or injury by heat was distinctly caused by the carelessness or negligence of the defendant in the discharge of his duty as a common carrier, then defendant is liable. These questions were submitted to the jury, and have been found against the defendant. The findings are justified by the evidence. The meats would not have been damaged if they had been brought to the station and the usual notice given, or even the fact made known to plaintiffs upon inquiry by them. The jury has also found that plaintiffs were without fault in not taking the meats out of the car on Saturday night and during Sunday. The whole loss is due to the delay in bringing the car to the station and bringing that fact to the notice of plaintiffs, so that it could be unloaded. If this be called delay, it was not a “ delay from unavoidable causes,” as specified in the bill of lading, for which an exemption might be claimed. It was simply carelessness and neglect to do business as it should be done. The plaintiffs had no means of knowing what was in the defendant’s cars backed out in the yard and locked up. It is preposterous to expect them to know by instinct when their goods arrived, and without notice, even after inquiry. The defendant cannot complain when the plaintiffs were held bound by a bill of lading, delivered to their agents in Chicago two days after the goods were shipped, and received by plaintiffs in Binghamton some little time thereafter.

We have examined the various exceptions to which our attention has been called, and find no errors for which a new trial should be granted. It is not necessary to notice them specifically.

The verdict of the jury has found all the facts against the defendant. The law has been held quite as favorable as it should be in the interest of the defendant. The result appears just and should not be disturbed.

The order denying a motion for a new trial should therefore be affirmed, with costs.

Learned, P. J., concurred; Bocees, <L, concurred in the result.

Order affirmed with costs.


text:
    JOHN S. WILBER and CHARLES WITPEN, Respondents, v. GEORGE W. BAKER, as Sheriff, etc., Appellant.

      Gosts — lien of attorney for — cannot be defeated by a fraudulent settlement of the action.

    August 30, 1878, the plaintiffs herein recovered a judgment against one Smith, upon which an execution was issued on September 2, 1878. On August 16, 1879, the sheriff having failed to return the execution, the plaintiffs brought this action against him to recover damages because of his failure so to do. Thereafter, and on August 28, 1879, for the purpose of defeating the lien of the plaintiffs’ attorney for his costs, included in the said judgment, and also his costs in this action, the plaintiffs settled with Smith and the sheriff, and the execution was returned by the latter satisfied.

      Held, that the plaintiffs’ attorney was entitled to continue this action, and to recover a judgment for the costs of the former action and also for the costs of this one.

    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.
    It appeared that on August 30, 1878, a judgment for ninety-four dollars and forty-one cents damages and costs, of which seventeen dollars were for costs, was recovered in this court by the plaintiffs against one Silas E. Smith, and that execution was issued thereon to the defendant September 2, 1878, against the property of the said Smith.
    That the sheriff did not return the said execution within sixty days. That thereupon and on August 16, 1879, this action was brought against him to recover damages because of his failure so to do; that after this action was commenced and for the purpose of defeating the plaintiffs’ attorney in recovering the amount of his lien for costs upon the said judgment, and in this action these plaintiffs settled with the said Smith and the sheriff for the amount of the judgment against Smith, and thereupon and on August 28, 1879, the said execution was returned satisfied and the said judgment was discharged of record.
    That this action has been continued by the plaintiffs’ attorney, H. G. Paris, since the said settlement, for the purpose of enforcing his lien for costs, no part of which has been satisfied.

      The court held that the plaintiffs were entitled to judgment to be entered for the benefit of the plaintiffs’ attorney for the sum of seventeen dollars, with interest from August 30, 1878, and a bill of costs in this action to be taxed.

      Hughes & Northrup, for the appellant.
    No order or leave to continue this action was granted. The remedy of the attorney, if any, was by motion to set aside the return of the execution and the satisfaction of the judgment, and for leave to proceed with the action. (Rooney v. Second Ave. R. R. Co., 18 N. Y., 368; Ward v. Syme, 9 How. Pr., 16; Wright v. Wright, 70 N. Y., 96, 98 [s. e.] ; Wright v. Wright, id., 98 [c. pi]; Packard v. Yencer, 10 N. Y. Weekly Dig., 271; decided June, 1880, 4th Dept., S. C. [21 Hun], 403).

      U. G. Paris, for the respondents.
    The practice of the plaintiffs’ attorney in this case was correct and the decision just. (Talcott v. Bronson, 4 Paige, 501; Swain v. Senate, 5 Bosanquet & Puller, 99 ; Sweet v. Bartlett, 4 Sandf. S. C., 661; Haight v. Holcomb, 7 Abb., 211; Wilkins v. Batterman, 4 Barb., 47,, and cases there cited; Shackleton v. Hart, 20 How., 39; Rooney v. Second Ave. R. R. Go., 18 N. Y., 368, and cases ; Owen v. Munson, 18 How., 156.)

      See Goddard v. Trenbath, post, 182.

   Boardman, J.:

When this suit was commenced, August 16, 1879, the plaintiff had a good cause of action against the defendant for ninety-four dollars forty-one cents and interest. The fraudulent settlement of the case, made for the purpose of defeating the attorney’s claim for costs, as well in the former as in the present suit, was August twenty-fifth, nine days after this action was commenced. The defendant at the time of the settlement had notice of the attorney’s claim and lien. The question on this appeal is simply this: Did the settlement of the suit by the defendant, under the circumstances of this case, defeat the attorney’s claim against him for costs recovered in the former action, and bar his right to proceed for his costs in this one? We are of the opinion that it did not. It was held in Fox v. Fox (24 How., 409) that the attorney’s lien for his costs would be protected to him, against a fraudulent settlement by his client of the judgment in which they were included. (See, also, Haight v. Holcomb, 7 Abbott, 210; Rooney v. Second Avenue R. R. Co., 18 N. Y., 368; Pickard v. Yencer, 10 W. D., 271.) Tbe Code also (§ 66) declares in effect that a fraudulent settlement of an action shall not affect the attorney’s rights. According to thé above decisions, an attorney is to be deemed the equitable assignee of the judgment obtained by him to the extent of his costs recovered thereby. It follows then that the attorney should be protected to the extent of his costs in the former suit, found by the judge to have been seventeen dollars. As regards his costs in this action, it was held in Pickard’s case, above cited, that the attorney might prosecute the action to trial and final judgment in the name of his client with a view to the protection of his own rights therein. The case of Murray v. Jibson (11 W. D., 28, 29; S. C., 22 Hun, 386) is not in point. That case simply held that the plaintiff could not move for himself and in his own behalf to set aside the settlement, having in view, the rights of his attorney merely.

It is insisted that the attorney’s remedy-here was by motion to set aside the settlement, but there had been no settlement to set aside, when the suit was commenced. The suit was then in progress, and, according to the decision in Pickard’s case, the attorney had the right to continue the case to judgment, notwithstanding the settlement.

It is further urged that there was no evidence that there were seventeen dollars costs in the judgment claimed to have been settled and discharged. There was proof that the judgment embraced costs. The judge found the amount to be seventeen dollars. This finding was excepted to, but at some time subsequent to the trial. There was no motion for a nonsuit made or objection urged on the trial, based on this alleged defect of proof. Had the objection then been raised, it could and doubtless would have been at once obviated. The judgment seems to be right, and it must be affirmed with costs.

Present — Learned, P. L, Boardman and Bockes, JJ.

Judgment affirmed, with costs.


text:
    ROBERT C. MARTIN, Respondent, v. JACOB S. RECTOR, Appellant.

      Evidence — andent documents — what must be shown zo amnonae their admission in emdence.

    Upon the trial of this action of ejectment, two leases were produced on behalf of the plaintiff, one dated in 1808 and the other in 1815. A witness, called by the plaintiff, gave evidence tending to show that the witnesses to the leases were dead; that, from an inspection of many early leases of the same character, he had become familiar with their signatures and thought them to be genuine; that the lessor was dead ; that he had seen him write, and believed his signature to be genuine. An objection to the admission of the leases, made by the defendant, on the ground that there was no proof of their execution or delivery, was overruled.

      Eeld, error ; that there was no such proof of possession under, or as to the custody of the leases, as to authorize their admission in evidence as ancient records.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.
    This action was brought to recover the possession of certain real estate described in the complaint, situate in the town of Schodack, Rensselaer county. The answer is a general denial. The premises were originally owned by Stephen Van Rensselaer. They are included in two indentures or leases in fee (reserving rent perpetually), .one to Abel French, dated December 17, 1815, the other to George Adriance, Jr., and Rachel Witbeck, dated June 15, 1808, both containing a clause giving a right of re-entry for non-payment of rent. The plaintiff claims title under the will of Stephen Van Rensselaer and a conveyance from William P. Van Rensselaer, the devisee of Stephen.

      George W. Miller, for the appellant

      Matthew Hale, for the respondent.
   Boardman, J.:

This action was brought to recover possession of certain lands alleged to be held by defendant, subject to certain permanent leases, for non-payment of rent. The defense was a general denial.

On tbe trial before tbe referee certain leases were produced purporting to have been given prior to 1820, to wit, 1808 and 1815, to one French and others. Evidence was given tending to show on information that the witnesses to the leases were dead. The witnesses then testified as follows: By inspection of many early leases of same character have become familiar with the signatures of those writers and think them genuine. Knew Stephen Van Rensselaer, grantor named, and saw him write; believe signature genuine; S. Van Rensselaer is dead.” The leases were then offered in evidence. The objection was taken that there was no proof of execution by grantor or of delivery of deeds. The objection was overruled and defendant excepted. The referee held that the leases proved themselves as an ancient record to which also the defendant excepted.

. An ancient deed is admissible in evidence, if it is made to appear that it comes from such custody as to afford a presumption that it is genuine and that it is not subject to suspicion by reason of interlineations, erasures or otherwise. It may be also admitted upon proof of thirty years’uninterrupted possession under it. (Clark v. Owens, 18 N. Y., 437; 1 Gr. Ev. §21 and note; Ridgeley v. Johnson, 11 Barb., 527; Lyon v. Adde, 63 id., 89, 104; Hewlett v. Cock, 7 Wend., 371, disapproving of Jackson v. Blanshan, 3 Johns., 298.)

In this case there was no such proof of possession under the leases as the law requires to make the leases competent evidence. Nor was there any evidence of the custody of the lease from the time of its date to the day of the trial, or any portion of that time. In fact when the plaintiff rested his case nothing had been proved which entitled the leases to be received in evidence to support plaintiff’s claim of title to the premises in controversy.

This action was begun in 1861 or 1862. The trial of the issues joined was begun in 1864 and concluded in 1879. The leases and other documentary evidence are not printed in full. The abstracts do not even contain a description of the property conveyed. There is nothing in the evidence by which the lands described in the complaint can be identified. Doubtless the return is imperfect. However that may be, we think the exceptions to the admission of the leases in evidence were well taken.

Other exceptions were taken and. discussed. They refer to the findings of the referee on the facts and the want of evidence to sustain them. As a new trial will take place and evidence will be offered anew, it will not profit the parties to discuss those exceptions. If they are well founded the plaintiff can obviate them if possible upon such new trial.

The judgment must be reversed and a new trial granted, costs to abide the event. The defendant asks for restitution of possession, but the case does not show he has been deprived of the possession. The judgment must be reversed.'

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: Westbrook, J.:

text:
      FREDERICK M. WHEELER and MARVIN D. WHEELER, Administrators, etc., Respondents, v. GILBERT SPENCER, Appellant.

      Statute of frauds — when the fact that a contract is invalid under, cannot he set up after its performance.

    The defendant having agreed with one Sands to draw and raft certain lumber for him from Sands’ mills to Bordentown, at a specified rate per thousand feet, and being in need of supplies wherewith to perform his contract, it was agreed by and between Sands, the defendant, and one Wheeler, that the latter should furnish the defendant with such supplies as he might need and charge them in the first instance to him; that the lumber was to he sold or delivered to Wheeler, and that when the work was done there was to he a settlement, and that then the goods delivered to the defendant were to he charged over to Sands. The defendant performed his contract and the lumber was delivered and sold to Wheeler.
    In an action by Wheeler against thé defendant to recover the value of the goods furnished to him, held, that it was unnecessary to consider whether or not the original agreement was valid under the statute of frauds and could have been enforced if either of the parties had refused to perform it.
    That as the defendant had never agreed to pay for the goods in money, but by work to be done for a third person, and as he had performed the agreement on his part, an action for the price of the goods could not be maintained against him.

      Appeal from a judgment in favor of the plaintiffs entered upon the report of a referee.

      A. Taylor, for the appellant.

      H. & W. J. Welsh, for the respondents.

       Decided November, 1880.

   Westbrook, J.:

This is an appeal from a judgment entered upon the report of a referee in favor of the respondents, as plaintiffs, against the appellant, as defendant.

The action was for goods sold and delivered, and the referee has found the facts to be as follows: The defendant agreed with one Ezra Sands to draw and raft lumber for him (Sands) from Sands’ mill to Bordentown, at the rate of three dollars and seventy-five cents per thousand feet. The defendant needing some supplies to do the work, applied to Sands therefor. Sands and the defendant then went to the store of Melvin Wheeler, since deceased, at Hancock, Delaware county, N. Y., and stated to him the agreement, and the need of defendant. It was then arranged between the three, that Wheeler should furnish the defendant with the goods he required, which were to be charged to him in the first instance; the lumber was either to be sold or delivered to Wheeler, and when the work was finished there was to be a settlement and the goods delivered to the defendant were to be charged over to Sands. The defendant performed his contract, the lumber was in fact delivered and sold to Wheeler, but the defendant is, by decision of the referee, adjudged to pay for the goods delivered to him by Wheeler, upon the ground that the agreement under which they were purchased was void by the statute of frauds.

It is not worth while to discuss the question whether the agreement between the parties was one capable of being enforced provided either had refused to fulfill. That question is not before us. No goods were sold and delivered to the defendant under an agreement to pay for the same in cash, but the same were furnished by the one and accepted by the other, with the understanding that the buyer was not to pay for them in money, but by work to be done for a third person, who in turn agreed to deliver to the seller, and did deliver to such seller lumber out of which' the payment of the goods was to be made. The goods can no more be compelled to be paid for in money, than a party, when a contract originally void by the statute of 'frauds, but fully executed and completed by both parties, can recover back money paid and accepted in execution thereof, upon the ground that the performance *of the agreement could not have been enforced.

If, in answer to this argument, it be said that Wheeler and Sands made, a new agreement by which, for a specific price, the former purchased the lumber of the latter and paid him therefor, the reply is clear. Good faith and common honesty required Wheeler to notify the defendant thereof, and not permit him to trade at the store on the faith of the original agreement. The defendant has brought no suit against either Wheeler or his estate, which makes it necessary to discuss the latter’s liability upon his promise. Wheeler himself, in his lifetime, brought one against the defendant, which can only be sustained by showing that the party sued has failed to perform either an express or implied contract on his part; and the difficulty with the case of the plaintiff is, that the defendant has broken no promise either express or implied, because, as we have already said, his agreement was not to pay for the goods in cash, but to pay for them in work to be done for Sands, and having done precisely what he agreed to do, he cannot be compelled to do more.

The judgment should be reversed, a new trial granted and the order of reference discharged, with leave for either party to move at Special Term for the appointment of a new referee; costs to abide event.

Learned, P. J., and Bockes, L, concurred

Judgment reversed; referee discharged; new trial granted; costs to abide event.


author: Boardman, J.: Learned, P. J.:

text:
    ELIZA M. WILKINS and MARY E. PURSE, Respondents, v. HOSEA BAKER, ALONZO K. LYON and EDWIN C. ENGLISH, Administrators, etc., of ELIZA C. HOUSEWORTH, Deceased, Appellants.

      Evidence — when a pa/rty cannot testify as to a personal transaction with a deceased, person— Code of Oivil Procedure, § 829.
    On January 13, 1878, one Eliza House-worth, being sick of a disease from which she died on February seventh, delivered to the defendant Baker certain securities, and directed him to apply the income and, if necessary, the principal thereof to the support of her husband during his life, and upon his death to divide what was left between the plaintiffs. On January twenty-seventh the husband died, and between that time and February seventh she altered the arrangement as to the said fund, and directed Baker to apply a portion thereof to other purposes, which 'he did. In this action, brought by the plaintiffs to recover the whole of the fund, the defendant Baker claimed to be allowed for the amount expended by him in pursuance of the last direction of the deceased, and the other defendants, the administrators of Eliza Houseworth, claimed to be entitled to the whole fund received by Baker.
    Upon the trial Baker was called by the plaintiffs, and allowed, against the objection and exception of the other defendants, to testify as to the said transactions with the deceased, and as to what she then said to him.

      Held, that the evidence was inadmissible under section 829 of the Code of Civil Procedure. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe trial of this action by tbe court without a jury.
    On tbe 13th day of January, 1878, one Eliza O. Houseworth, deceased, delivered to tbe defendant Iiosea Baker certain notes and securities, from which he subsequently realized the sum of $1,136.92.
    At the time she delivered this property to Baker, she told him “to take that and keep it, and if it was necessary lor Mr. House-worth (her husband) to use the interest of it, well and good; and if it was necessary to use all of it for his comfort to use it. lifter his decease, what was left was to be divided between Mrs. Wilkins and her daughters ” (plaintiffs). Baker also testified as follows: “ She gave me these obligations and securities, etc., and she said she thought it doubtful about her living and she wanted to make provision for her effects, what she had, in case she did not live.”
    Mr. Houseworth, the husband, died on January 27, 1878, and Mrs. Houseworth on February 7, 1878. Between her husband’s death and her own she gave Baker different directions as to the disposal of the fund delivered to him on January thirteenth. She directed him to pay a number of bills, expenses, etc., and the balance to plaintiffs. Baker, pursuant' to the latter directions, at the time of trial, had paid out $585.50 on bills; and to carry out the final wishes of deceased he had yet to pay $415. The payments so made and to be made would about exhaust the fund.
    On January thirteenth, when she delivered the notes, etc., to Baker, she was, as the judge finds, “ sick of pneumonia and confined to her bed. She continued sick and languished with the latter disease until her death, and while still languishing of pneumonia was struck with paralysis and died the day following, February 7, 1878.”
    The plaintiffs claimed that the transaction of January 13, 1878, amounted to a gift inter vivos/ that the fund was delivered to Baker as a trustee; that the title at once passed to plaintiffs, and that she could not afterward revoke such gift or modify the same, and that the subsequent directions given to Baker were of no effect.
    The defendant Baker claimed that the transaction constituted a transfer in the nature of a gift causa mortis, revokable by the deceased during her life, and that it was, by the subsequent directions she gave Baker, revoked or modified.
    The defendants English and Lyon claimed that there was no gift ' of any kind or valid transfer of the securities.
    The judge adopted the plaintiffs’ view of this transaction, and directed judgment against Baker for the whole fund.

      John P. Putnam, for the appellant Baker.

      F. A. Williams, for the appellants English and Lyon, administrators,

      W. B. French, for the respondents.
   Boardman, J.:

Plaintiffs sue for money alleged by them to have been given by Mrs. Houseworth, the intestate, to defendant Baker, to be kept by him for the use of intestate’s husband during his lifetime, and what should remain to be divided between the plaintiffs. This was January 13, 1878. She was then sick, and died on the seventh of February after. English and another, defendants, were appointed her administrators. On the 27th day of January, 1878, her husband died. The administrators of Mrs. Houseworth deny plaintiffs’ claim,, and allege that they, as administrators, are entitled to the property claimed by plaintiffs and held by defendant Baker. Baker admits the receipt of the property, and asserts that he has expended a portion thereof pursuant to the directions given him when he received the same, and that he holds the balance, about one-half of the original amount, for the persons entitled thereto.

The claims of the respective parties are therefore substantially as follows : The plaintiffs claim as a gift $1,180, being nearly all which Baker received from intestate. The administrators claim from Baker the whole property which he received from intestate as assets at her death undisposed of.' Baker claims to have disposed of near one-half of the property given to him by the intestate in accordance with her directions, and that the remaining $700 he is ready to pay to the persons entitled thereto.

Hpon these issues the case came on for trial without a jury. The defendant Baker was called as a witness for the plaintiffs, and was asked what was said between the deceased and himself in respect to the property in controversy. The administrators of the deceased (defendants) objected “that the witness was a co-defendant and interested in the event of .the action, and incompetent, under section 829 of the Code, to testify; that the plaintiffs claiming title through the witness, he was incompetent to testify against his co-defendants, who claimed^ as administrators of Mrs. Eliza C. Houseworth, deceased.” The objection was overruled, and the administrators excepted.

Mr. Baker then gives in substance the following statement: “ On the 13th of January, 1878, the intestate gave me the notes, money, etc., and told me to keep it for the use of her husband during his life; both principal and interest if it was necessary for his comfort. After his death I was to divide what was left between the two plaintiffs. In pursuance of' that direction, I took and have since retained the property, except what I have paid out. Mr. House-worth, the husband, died on the 27th of January, 1878. Mrs. Houseworth died on the seventh day of February following.”

Between the twenty-seventh of January and seventh of February, and only a day or two before her death, Mrs. H. again called Baker in, and gave him directions where and how to dispose of the money and property she had given him on January thirteenth. In pursuance of those last directions Baker has disposed of nearly one-half of the property in his hands in the payment of debts, funeral expenses, etc. These last directions were quite different from those of January thirteenth, the plaintiffs being only entitled to a small balance which would probably remain after making all the payments which she had directed.

Was such evidence admissible under section 829 of the Code of Civil Procedure ? Eliminating those parts of the section not applicable to this case and it would read as follows: “ A party * * * shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the * * administrator * * of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.”

Now Baker was a “ party ” to the action. His interest ” required that he should be excused and relieved from again being compelled to pay what he had already disbursed under the directions of the deceased. He was therefore testifying in his own behalf or interest, and in behalf of the plaintiffs who claimed to have succeeded to his title and interest, on the death of the husband, in the property given to Baker. The interests of the plaintiffs as well as of Baker were hostile to those of the administrators. He was then testifying against the administrators of the deceased concerning a personal transaction and communication between the witness and the deceased. In short he was proving in this way his title to the property, how it was derived from the deceased, and that by virtue of such title he was justified as against both plaintiffs and the administrators in paying out and disposing of the money as he had already done. The effect of his testimony was to destroy the plaintiffs’ claim of title and to preclude the administrators from acquiring any title.

The evidence seems to be in the teeth of the Code. Baker, on his own showing, was made a trustee of this property, to receive and hold it for certain uses and purposes. He establishes his title by his own evidence, and by his own evidence he destroys the title of the administrators which the law would have devolved upon them.as administrators after the death of Mrs. Houseworth.

The authorities cited by counsel are not on either hand analogous. Church v. Howard (79 N. Y., 415) seems most nearly to resemble the present case. In any event the language of the section must, we think, be construed to exclude such evidence, and, hence, without consideration of the other questions presented, we must reverse this judgment and grant a new trial with costs to abide the event.

Bookes, J., concurred; Learned, P. J., concurred in the result.

Learned, P. J.:

Baker was not examined on his own behalf. He was called by the plaintiffs and examined on their behalf. They had a right to his testimony unless they were a party succeeding to his title or interest.”

They did not succeed to his title or interest. He did not transfer or assign his title to them. They claimed that. Mrs. Houseworth gave to them the property in dispute, therefore they took (according to their claim) directly from Mrs. Houseworth and not by succession to Baker. They claimed that he was the mere custodian of the property, the title to which passed absolutely to them from Mrs. Houseworth. On the contrary Baker claimed that the gift was mortis causa.

The plaintiffs wished to prove by Baker that Mrs. Houseworth gave to them the property in question; not that she gave it to Baker and that to his title they had succeeded. While, therefore, Baker was not competent in his own behalf, yet he was competent for the plaintiffs against the defendants. If the plaintiffs claim was correct, Baker would have to pay to them all the property, notwithstanding his appropriation of part of it under subsequent directions.

But, in my opinion, the gift was one mortis causa, and, therefore, I concur in the result of the foregoing opinion of my brother Boardman.

Judgment reversed, new trial granted, costs to abide event.


author: Boardman, J.: Learned, P. J.

text:
    HENRY MORRELL, Respondent, v. BENJAMIN R. PECK and others, Commissioners of Highways, etc., Appellants.

      Action for 'negligence — evidence that the alleged, defect was subsequently repaired, not admissible in.

    The plaintiff, who was blind in one eye, while passing in the night-time over a bridge, which was not guarded by a railing, unexpectedly met a loaded team, in attempting to avoid which he stepped off the bridge and sustained injuries, to recover damages for which this action was brought against the commissioners of highways. Upon the trial before the court, without a jury, the plaintiff was allowed, against the defendants’ objection and exception, to show that after the accident the defendants had, in pursuance of a resolution adopted prior thereto, placed a railing upon the bridge, and this evidence was considered by the court as bearing upon the question of the defendants’ negligence.

      Held, that the court erred in admitting the evidence.
    How far proof of the subsequent erection of the rail was admissible for the purpose of proving funds in defendants’ hands, and that they exercised control over the bridge; and its admissibility when considered in connection with the fact that the railing was put up in accordance with a resolution adopted prior to the accident, considered by Learned, P. J.
    Appeal from a judgment in favor of tlie plaintiff entered upon tbe trial of this action by the court without a jury.
    The action was brought to recover damages for an injury alleged to have been sustained by the plaintiff, by falling-from a bridge over a stream in the village of Waterford.
    The alleged negligence of the defendants, the commissioners of highways, consisted in their failure to place a railing upon the south side of the bridge, that being the side from which the plaintiff fell.

      J. S. Z’Amoreaux, for the appellants.

      J. W. Lansing, for the respondent.
   Boardman, J.:

This action was brought to recover damages for an injury done to plaintiff in falling from a bridge which was not guarded by a railing.

Within the case of Hart v. Hudson River Bridge Company, lately decided by the Court of Appeals, the question of defendant’s negligence and of plaintiffs contributory negligence were, under the evidence, questions of fact to be decided by the court upon the trial. The plaintiff was proved to have been upon the bridge, to have fallen therefrom, presumptively, from the lack of a railing, and to have been injured by such fall. His want of contributory negligence is asserted from the evidence of his blindness in one eye, and that he was unexpectedly met in the night-time on the bridge by a loaded team which he attempted to avoid and stepped off. It is a much stronger case than Hart’s where the court held the evidence should have been submitted to the jury.

But the plaintiff was allowed, under objection and exception, to prove that the defendants, in a day or two after the plaintiff’s injury, put up the railing on the side of this bridge where the accident occurred. Such evidence is in conflict with the decisions of the Court of Appeals and of this court following the same. Dougan v. Champlain Transportation Company (56 N. Y., 1) is almost identical with the case under consideration. Plaintiff’s intestate slipped under a gangway railing from a steamer into the lake and was drowned. Plaintiff was permitted to show that after the accident the defendant caused the open space to be boarded up. This was held to be immaterial and incompetent as evidence of negligence.

So in Baird v. Daly (68 N. Y., 547, 551) a recovery was had for partially swamping a scow, being towed by defendant’s tug at too great a rate of speed. In that connection it was proved by plaintiff that after the disaster the scow was towed at less speed. It was held to be improper, but the impropriety is attributed to the altered circumstances which sufficiently accounted for the slower speed. Again, the admission of evidence of a change in the character of a switch after an accident is error. (Salters v. D. and H. Canal Co., 3 Hun, 338, 341.) To the same effect is Payne v. Troy and Boston Railroad (9 Hun, 526).

The evidence objected to in this case was received “ and was considered upon the question, of defendant’s negligence.” It could only have been considered as an implied admission of the necessity of such a railing, and that defendants were negligent in not having erected it before. But the true rule requires evidence of negligence, based upon circumstances at or prior to the accident. It is an old and time saying that accidents always happen in a way that one did not expect.

It would be unfortunate if no provision could be made against a repetition of the disaster, because such act would be construed into an admission that it was negligence not to have it done before.

For the error in receiving the evidence the judgment must be reversed and a new trial granted, costs to abide the event.

Bockes, J., concurred.

Learned, P. J.

(dissenting):

There are one or two points which make me doubt whether the admission of proof of the erection of a railing was error.

The case was tried before the court without a jury.

To hold defendants liable, it was necessary or competent to prove funds in their hands. Proof of the erection of the railing was offered for this purpose, and also to show that they exercised control over the bridge. For that purpose it was proper. (Sewell v. Cohoes, 11 Hun, 626.)

Then it appears that the railing was put up in accordance with a resolution passed prior to the accident. . In that view it was not an after thought, but was evidence that, before the accident, the defendants thought a railing necessary.

It is true that at folio 475 of the case it is said that the subsequent erection of the bridge was considered on the question.of defendants’ negligence. But if it was evidence that they had funds, or that they had control of the bridge, then it was proper on the question of their negligence. Their negligence consisted in not putting up a rail when they had funds (or the means to obtain funds), and when they had control of the bridge. And the fact that they had decided to put up a railing before the accident, and did put it up after, is not objectionable under the Dougan v. Champlain case, although they carried out their decision afterwards.

Judgment reversed, new trial granted, costs to abide event.


author: Learned, P. J.:

text:
    JOSIAH NEWTON and others, Plaintiffs, and AARON H. BAKER and others, Sureties, Appellants, v. LESLIE W. RUSSELL, Assignee of FRANCIS CLEVELAND, Deceased, Respondent.

      Temporm'y injunction — undertaking upon — when the fees of counsel upon the trial arre recoverable upon it.

    In this action, brought to restrain the defendant from interfering with a boom across a certain river, the plaintiffs procured an order temporarily restraining him from so doing, and requiring him to show cause why the injunction should not be continued until the entry of final judgment in the action. Upon the return day an order was made, after a partial hearing upon the merits, providing that if the plaintiffs should, if required by the defendant, give an undertaking for a larger sum, the injunction should be continued until the final determination of the action. The order also authorized the defendant to give notice of a further hearing upon the order to show cause before another judge. Increased security was given, but no further hearing was had, and upon the trial a judgment was rendered in favor of the defendant.

      Held,, that the trial was necessary to enable the defendant to get rid of the injunction, and that he was entitled to recover the fees of his counsel thereon as a part of the damages secured by the undertaking.
    Appeal from an order made at Special Term confirming the report of a referee as to the damages sustained by the defendant in consequence of a temporary injunction granted herein.
    The action- was brought to restrain one Cleveland, the original defendant herein, since deceased, from detaching or interfering with a boom belonging to the plaintiffs which they claimed to be entitled to attach to Cleveland’s lands.
    A temporary injunction was granted accompanied by an order to show cause, upon the return day of which an order was made, “ that within ten days after written notice to do so by defendant, plaintiffs give an undertaking to secure any damages to the amount of $2,500, that defendant may sustain by reason of the said injunction, and that until the further order of this court, or a judge thereof, the said injunction be and the same is retained to the extent aforesaid ; and it is further ordered that the said defendant may give not less than five days’ notice for a further hearing upon the said order to show cause before Mr. Justice Landon, at Schenectady, and if such notice be given, said justice shall hear and determine the question of continuing the injunction in the same manner as if said order to show cause had been originally returnable before him.
    If such notice is given and such security is filed, the injunction hereby given shall be continued until the final decree herein. And it is further ordered, that in case notice is given to file security within ten days, as aforesaid, and the same be not filed within such time, then the said injunction order as aforesaid granted shall be deemed vacated without further application. Defendant need not serve any papers with said five days’ notice, and the papers then used need not be filed.”
    Increased security was given, but no further hearing was had. Upon the trial a judgment was entered in favor of the defendant. The referee allowed $450 as fees of the counsel employed by the defendant upon the trial.

      Dart & Erwin, for the appellants.
    Counsel fees on the trial of the action are not recoverable as damages by reason of a preliminary injunction, without evidence that the expense of the trial was increased by the injunction, or that a trial was made necessary by reason thereof. (Hovey v. Bubber-Tip Pencil Go., 12 Abb. [N. S.], 360; affirmed in 50 N. Y., 335; Dis-brow v. Garcia, 52 N. Y., 654; Hotchkiss v. Platt, 8 Hun, 46; Allen v. Brown, 5 Lans., 514; McDonald v. James, 47 How. Pr. R., 474; S. 0., reported in 38 N. Y., S. C. R., 76 ; Troodll v. Haims, 5 Daly, 389.)

      Leslie W. Russell, for the respondent.
    Where an equitable action is brought to obtain a permanent injunction, and a preliminary injunction is issued in aid of the anticipated final relief, and the motion to dissolve or continue it involves the whole merits of the action, so that the defendant is compelled to go to trial to secure a decision that the plaintiffs are not entitled to the injunction prayed for, reasonable counsel fees for the trial of the action are covered by the undertaking and will be allowed as part of the damages. (Aldrich v. Beynolds, 1 Barb. Ch. Pr., 613, 616; Edwards v. Bodine, 11 Paige, 223; Northrup v. Garrett, 17 Hun, 497; Gorcoram v. Judson, 24 N. Y., 106; Bose v. Post, 56 id., 603 ; Andrews v. Glewoille Woolen Co., 50 id., 282.)
   Learned, P. J.:

The plaintiffs obtained an injunction pendente lite, which restrained the defendant from interfering with a boom across a certain river. The order required the defendant to show cause as a certain time and place why this injunction should not be continued until the final decree. At the time and place an order was made by Judge James that, on notice by the defendant, the plaintiffs should give an increased undertaking to secure damages; that till further order the injunction be continued; that defendant might give a five days’ notice of further hearing] on the order to show cause before J udge Landon. And the order continued, that “ if such notice is given and such security is given, the injunction hereby given shall be continued until the final decree herein.”

If notice to file security were given and security was not filed the injunction was to be deemed vacated. The defendant gave notice and the increased undertaking was given. No motion was made before Judge Landon in regard to the injunction as provided for in the order. On the trial the defendant had judgment. The question here is, whether, as part of the damages on the undertaking, the defendant should have counsel fees of the trial.

It is fairly to be understood from the order that the defendant had the election either to move for a hearing before Judge Landon on the order to show cause, or to demand further security and to have the injunction stand till final judgment. The defendant chose the latter course. The plaintiffs have no right to complain because the defendant made this choice. The result was that a trial of the action became necessary in order to dissolve the injunction. Judge James had decided on a hearing of both sides (though not on a full discussion of the merits of the injunction) that, if the plaintiffs would give the increased undertaking, the injunction should be continued until the final decree. “ A trial was therefore necessary, not merely to dispose of the issues but to get rid of the injunction.” (Andrews v. Glenville W. Co., 50 N. Y., 282.)

The injunction was unlike that in Disbrow v. Garcia (52 N. Y., 654). There the injunction simply restrained the defendant from disposing of a bond during the pendency of the action. The defendant, therefore, might have sued upon the bond and collected it, notwithstanding the injunction. And the injunction did not express any decision as to the merits of the case. In Hovey v. Rubber-Tip P. Co. (50 N. Y., 335) it does not appear what the injunction was; but the court approve Andrews v. Glenville W. Co. Now, in the present case, the injunction involved the merits; it forbade the defendant to do those acts, during the action, which the final judgment would have forbidden him to do, if it had been against him.

Practically, the defendant recovered judgment when he began his action, and left the defendant to relieve himself from such judgment by a trial.

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

Bocees and Boardman, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    ANNIE A. GRATTAN, as Administratrix, etc., of HUGH P. GRATTAN, Deceased, Appellant, v. THE METROPOLITAN LIFE INSURANCE COMPANY OF NEW YORK, Respondent.

      Evidence — what is such a communication between a patient and his physician that it cannot be disclosed by the latter— Uode of Oivil Procedure, § 884.
    In May, 1876, one Terence Grattan, the brother of the plaintiff’s intestate, at the request of his employer, Jeffries, called upon one Dr. Mereness, a regularly admitted physician, at his office, and was carefully examined by the latter. Grattan took off his coat and vest, and the doctor percussed or auscultated him, had him inhale and exhale, listened at his back and heart, felt his pulse and asked him questions. At the close of the examination he told Grattan that he could not continue in his present business, and that he would not live long. Upon the trial of this action brought upon a policy of insurance issued by the defendant, in June, 1876, upon the life of the plaintiff’s intestate, who died in February, 1879, Dr. Mereness was allowed, against the plaintiffs objection and exception, to testify as to this examination and to state that he then discovered that Grattan had a disease of the lungs, and to giv^the details thereof. The defense interposed by the insurance company in the action was that the intestate, in applying for the policy, stated that the health of his brother was good, and that he had never had pulmonary or other constitutional disease.

      Held, that the evidence was inadmissible under section 834 of the Code of Civil Procedure, and that the court erred in receiving it.
    Appeal from a judgment in favor of the defendant entered upon a verdict directed at the Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought upon a policy of life insurance for $3,000 issued by the defendant upon the life of Hugh P. Grattan, and payable to him if he should survive the 24th day of June, 1896; and in case of his prior decease to his personal representatives or assigns within sixty days after receipt and acceptance of proof of his death by the company.
    The policy was issued the 24th day of June, 1876, and the application upon which it was issued is dated June 19, 1876. Hugh P. Grattan died February 18, 1879, and this action was brought September 8, 1879.
    The issues presented by the answer and contested upon the trial were in respect to the following alleged breaches of warranty by the plaintiff’s intestate: First. In stating that the health of his brother, Terence Grattan, was good at the time of making such application and that he had never had pulmonary or other constitutional disease, whereas it was alleged his said brother’s health at that time was not good, and he was, and for some time prior thereto had been, afflicted with disease of the lungs. Second. In stating falsely in his said application that the cause of his sister’s death, who died at the age of twenty-three years, was “ not known to applicant,” whereas it was alleged the cause of his sister’s death was “consumption, or female irregularities terminating in consumption.” Third. In stating his occupation to be that of a soda-water dealer, whereas it was alleged it was that of a soda-water peddler. Fourth. In stating that the cause of his mother’s death was “ fever after child-birth,” whereas it was alleged the cause of her death was consumption.
    It appeared on the trial that the examination of Terence Grattan, referred to in the opinion, took place in May or before the middle of June, 1876.

      ' At the close of the testimony the court held and decided that as to the third and fourth issues and defenses there was sufficient evidence to submit each to the jury, but as to the first and second defenses held that they were established as a matter of law, and directed a verdict for the defendant, and refused to permit the plaintiff to go to the jury upon the facts.

      James Lansing, for the appellant.

      Wm. Henry Arnoux, for the respondent.
   Learned, P. J.:

On the trial’Henry E. Mereness, a physician regularly admitted, was called as a witness and examined on behalf of the defendant. Objection was made by the plaintiff that he should not be allowed to testify, under section 834 of the Code. The objection was overruled and the plaintiff excepted.

Terence Grattan, in regard to whom this witness testified, came to the private office of Dr. Mereness, and was there some twenty minutes. No one but Grattan and the doctor were present. The doctor made an examination of him. This was done at the request of Mr. Jeffries, in whose employment Grattan was, and who had previously spoken to the doctor about making the examination. When Grattan came, he said he wanted to be examined. He took off his coat and vest; stripped off down to the waist; so that his breast was bare. The doctor percussed or auscultated; sounded him with his fingers; placed his ear at different parts of the chest; had him count or cough; placed his ear at the back; had him inhale and exhale; took the measurement of his chest; listened to the action of the heart; felt of the pulse; asked him questions; asked him how he felt in the region of the lungs.

The doctor testifies that it required a careful examination of the person to enable him to tell what the disease was.

Grattan told the doctor that he came to know, for Jeffries’ satisfaction, or for his own, whether or not he was capable of continuing in the business in which he was. The ¿tactor gave a written opinion on that subject addressed to Jeffries, and stated verbally to Grattan (in substance) that he would not live long. The doctor did not prescribe for Grattan, but he took a sufficient diagnosis to enable him to prescribe.

On the trial the doctor was permitted to testify, against plaintiff’s objection, that on this examination he discovered that Grattan had disease of the lungs, and to give the details of the disease.

The defendant insists that there was no relation of physician and patient between Mereness and Grattan. First. Because Mereness had not known Grattan before this interview. But the first interview with a physician is as sacred as any other. Second. Because Grattan did not consult him as to a prescription, and the doctor did not prescribe. But the day has passed when it was thought that a physician’s advice was of no use unless he ordered a dose of medicine. Third. Because the examination was made for Grattan’s employer, and the employer paid the doctor. Then if a father calls a physician to examine and advise as to a child, the child is not the physician’s patient. Or if, out of benevolence, a man requests a physician to examine some poor person, the physician is at liberty to reveal all he discovers.

Next, the defendant insists that there was no attendance of the doctor on Grattan, because he was not called upon to examine or consult, in order to give advice or relief. The defendant cannot mean that a physician must attend at the patient’s house instead of having the patient at the physician’s office. And the doctor was requested to give advice — advice of the most important kind — that is, whether Grattan was capable of doing certain work. Such advice, in a case of consumption, was probably more valuable than any prescription would have been.

Next, the defendant insists that the doctor did not act in a professional capacity, because he gave no prescription and no advice. But it is plain enough that there are cases where a physician, on examining a patient, sees that medicine will do no good; and that there is no advice to give, except just what the doctor gave to Grattan, to make the best of the present, because he would not remain here very long.

And it is incorrect to say that the words in section 834, which was necessary to enable him to act in that capacity,” limit the restriction imposed by the section to cases where the physician actually prescribes a dose of medicine or gives some medical advice.

In fact the physician does act in a professional capacity when, after examining a patient, he decides that neither medicine nor advice are needed, and therefore gives neither.

I am unable to see how this testimony can be allowed under the statute. The information which the doctor acquired was not such as might have been obtained by any person on a casual sight of Grattan. It was obtained by removing a part of Grattan’s clothing ; and by percussing and by listening to the action of the lungs. These are professional acts, and the information was obtained professionally. (Edington v. Mut. Life Ins. Co., 67 N. Y., 185; Grattan v. Met. Life Ins. Co., 21 Alb. Law Jour., 288.)

Eve.n if Grattan had no desire to know what his own condition was, but had consented to go to the doctor’s office because Jeffries, his employer, desired him to do so, still I do not see that this would change the matter. The object of the statute is plainly this, that persons may feel sure that whatever they disclose to a physician, in his professional capacity, in regard to their bodily condition, whether it be by word or by allowing a physical examination, shall be held sacred. It matters not whether the patient or some one else pays the doctor’s bill; or whether it is ever paid at all.

And it matters not whether the patient visits the physician to relieve his own anxiety, or to relieve that of some friend. The information which he thus enables the physician to acquire is protected.

It may, however, be urged by the defendant that the other ground on which the verdict was ordered, viz., the false statement as to the cause of the death of Hugh P. Grattan’s sister is sufficient to authorize an affirmance of the judgment.

The case of Grattan v. Metropolitan Life Ins. Co., above cited, is almost precisely like the present. It was the case of an insurance policy issued on the life of another member of the same family. And the information on which the answers to questions were written was obtained in the same way. One fact appears in that case, viz., that much of the certificate, and particularly the part relating to the sister’s death, was in blank, when Terence Grattan signed; and that the statement therein was inserted by Dr. Gnadendorf. But aside from that fact, the transaction seems to have been the same in both these cases. I do not think that the court in that case rested its decision exclusively on the fact above referred to; but rather on the truthfulness of the applicant in making statements to Eicholz, and the inadvertent omission of Dr. Gfnadendorf to put down the answers properly.. And it is only necessary to examine the opinion there given to see that there was, in the present case, a question for the jury as to the point now under consideration.

Eor these reasons the judgment should be reversed and a new trial granted, costs to abide the event.

Bookes and Boaedman, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.


author: Learned, P. J:

text:
    JOHN McMAHON, Appellant, v. THE PORT HENRY IRON ORE COMPANY OF LAKE CHAMPLAIN, Respondent.

      Contributory negligence — when the fact that a servant continues his work after knowledge of a defeat, does not constitute contributory negligence.

    Upon the trial of this action, brought by the plaintiff, an employe of the defendant, to recover damages for injuries sustained by reason of the premature explosion of a blast while he was engaged in charging the hole, it appeared that the defendant was, to the plaintiff’s knowledge, guilty of negligence in three respects, viz., in using damp, unglazed powder, in drilling a square instead of a round hole, and in using an iron instead of a copper spoon for charging it.
    Held, that the mere fact that the plaintiff continued his work, with knowledge of these facts, did not of itself establish contributory negligence as a matter of law on his part, but only authorized the submission of that question to the jury, and that the court erred in taking it from them and nonsuiting the plaintiff. ’
    Appeal from a judgment in favor of the defendant entered upon a nonsuit directed at the Circuit.
    The plaintiff was an employe of the defendant. His work consisted in charging and firing holes for blasting. He continued under such employment until July 3, 1875, when he was injured by the premature explosion of a blast while he was engaged in charging a hole drilled in rock.
    The appellant claimed that the hole was irregularly made, being square instead of round, by reason of the incompetency of his co-servant who operated the drill by which it was made; that the powder was dangerous by reason of its dampness, which caused it to adhere to the irregularities of the hole; that the iron spoon used in charging the hole was dangerous; that it was liable to and did strike fire by coming in contact with the irregularities of the hole, thus igniting the powder that adhered to such irregularities, and causing the explosion.

      Martin T. McMahon, for the appellant.

      Waldo & Grover, for the respondent.
   Learned, P. J:

The question here is whether the knowledge which the plaintiff had of the alleged defects, of itself, made him guilty of contributory negligence; or whether the fact of such knowledge, with other circumstances, should have been submitted to the jury, that they might determine from all the evidence whether he could recover.

In Hawley v. N. C. R. W. Co. (24 Sup. C. N. Y, 115) on a careful examination of eases it was held that knowledge of defects by the plaintiff was not enough to justify a court in nonsuiting. So in the case of Hough v. Railway Co. (100 U. S., 213) it was held that the knowledge of the plaintiff was not, under the circumstances and as a matter of law, absolutely conclusive of want of due care.

In the case of Gibson v. Erie R. R. (63 N. Y., 449), cited by defendant, the deceased appears to have been actually guilty of negligence and the decision is placed partly on that ground.

The case of Mehan v. S. B. & N. Y. R. R. (73 N. Y., 585) was held to be a case for the jury.

Without citing more cases, it seems to be the true doctrine that perhaps there may be instances in which the knowledge of the defects, possessed by the injured party, is so definite that he must be deemed, as a matter of law, to have taken the risk on himself of injury arising therefrom; but that, as a general rule, such knowledge is only a circumstance to be submitted to tbe jury from which they may infer, negligence. And it would seem also that in most cases contributory negligence is a question of fact.

The alleged negligence of the defendant consisted in three things, the quality of the powder, the shape of the hole, the iron instead of copper spoon. There was evidence tending to show that the powder was damp and not glazed, and that for this reason it would adhere to the sides of the hole; and there was evidence that the hole started as a round hole and so continued the length of the first drill, about a foot, and that then it became square; and that this was through the negligence of the man who worked the drill. The plaintiff testifies also that if there were lumps (that is, projections) in a hole, he could have discovered them in a round hole, not in a square hole. In regard to the powder, the plaintiff testifies that he had complained to some of the officers that the powder was bad, not that it was dangerous. lie also says that he knew that in working this iron over the stone it was liable to strike fire, and knew that there was some danger in pushing the iron spoon into the hole.

Now, of course, the plaintiff in undertaking the business assumed the ordinary risks. If the defendants are liable, it must be because they failed to provide proper materials and the like. Assuming then, for the present, that it was negligent' for the defendants to furnish damp powder and an iron spoon, and to drill holes which were not round, the question is, whether the mere knowledge of the existence of these circumstances charges the plaintiff with contributory negligence. It may be a fact for the jury to consider. But can we say that the plaintiff was bound to stop work on account of these circumstances, or that, if he should proceed and should be injured by defendant’s fault, he would have no redress.

It would seem to be unreasonable that one who has undertaken a service which, in itself, has some elements of danger, whenever he shall see that the danger has been increased through some negligence of his employer, must either stop his employment or be deemed to have accepted the increased risk. We do not think that this is the rule. And it seems to us that the plaintiff had a right to go to the jury on the question whether he was, under the circumstances, justified in going on with his work.

In this examination of the case we have not discussed the negligence of the defendants, because the justice put the nonsuit solely on the ground of the plaintiff’s knowledge. There seems to have been enough, in his judgment, to submit to the jury on the question of the defendants’ negligence. And we see no reason to disagree with him on that point.

Judgment reversed, new trial granted, costs to abide event.

Boardman, J., concurred, Bockes, J., not acting.

Judgment reversed, new trial granted, costs to abide event.


text:
    DOCTOR TARBELL, Respondent, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Train conductor — w7ten tTie company is estopped from denying Ms authority to allow a passenger to stop over at a station.

    Where a passenger, upon applying for information to a train agent or conductor, is informed by him that he may get off at a station and continue his journey by the next train upon the same ticket, and the passenger relying upon the said statement, leaves the train at that station, the company is bound to carry him on the next train to the end of his route upon that ticket, and is estopped from denying the authority of the conductor to make the said agreement.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff on the 6th day of June, 1878, .purchased a ticket entitling him to ride over defendant’s line of railway from Harrisburg, in the State of Pennsylvania, to the city of Elmira, New York. Upon this ticket plaintiff rode to Troy, Pa., where he got off and resumed his journey upon the next train which followed some hours after the train upon which he commencd his journey. The ticket had been punched for the Elmira division, extending from Williamsport to Elmira, just after the train left Williamsport, and coupons to Williamsport had been taken off. Upon the following train plaintiff offered the ticket upon which he had ridden from Harrisburg to the train agent, claiming the right to ride thereon. The train agent refused to recognize this right but demanded payment of fare, which plaintiff refusing to make he was put off at Columbia Cross Roads, a station on defendant’s railroad. One of defendant’s rules and regulations required a passenger having a ticket from one station to another, who desired to stop over at an intermediate station and pursue his journey by a subsequent train, to apply to the conductor and obtain a stop-over ticket. The plaintiff claimed that after leaving Williamsport and while the defendant’s train agent was punching his ticket, he told the agent that he desired to stop off at Troy, and was told by the agent that he could stop off and resume his journey by the next train on that ticket, and that acting upon this permission he did so stop off. The whole transaction took place within the State of Pennsylvania, and it was conceded by plaintiff’s counsel that the laws of that State should govern the case. The counsel for the defendant introduced in evidence two decisions of the Supreme Court of the State of Pennsylvania which he claimed should control the disposition of this case and preclude a recovery by plaintiff.

      G. M. Dimen, for the appellant.
    The plaintiff failed to establish any legal claim against the defendant and should have been nonsuited. (.Barker v. Coffin, 31 Barb., 556 ; Hamilton v. N. Y. C. JR. B. Co., 51 N. Y., 100; Elmore v. Sands, 51 id., 512; Cheney v. Boston of? Maine B. B. Co., 11 Mete., 121; 5 Southern Law Rev. [N. S.], 765.) The train agent had no authority to vary the rules and regulations of defendant. (Dietrich v. Penn. B. B. Go., 71 Pa., 132; Oil Creek R. R. v. Clark, 72 id., 231; Boice v. Hudson R. R. Co., 61 Barb., 611; McClure v. Philadelphia, etc., R. R. Co., 31 Md., 532; 6 Am. Rep., 315; 5 Southern Law Rev. [N. S.], 770 [3], 771, 772 [1].)

      F. E. Tibbetts, for the respondent.
    The train agent had power to waive the regulations, and the company were bound thereby. (Pennsylvania R. R. v. McCloskey, 23 Penn. St. R., 526; Dem

      ing v. Grand Trunk R. R. Co., 48 N. H., 455; Philadelphia cmd Reading R. R. Co. v. Derby, 14 How. [IT. S.], 468; dee. H. S. Sup. Ct., vol. 20, p. 294; Dermy v. N. Y. C. cmd BL. R. R. Co., 5 Daly, 50; Riggins v. Watervliet Turnpike Co., 46 N. Y., 23; Lamothe v. St. Louis Marine R. R. Co., 1Y Mo., 204; Dig. Ry. Dec., p. 14; RendersonY. Railroad Co., 1Y Texas, 560; JV. Y. and R. R. R. R. Co. v. Schuyler et al., 34 N. Y., 30.)
   Learned, P. J.:

The learned judge charged the jury that they had no right to give punitive damages, but that if the plaintiff’s feelings were injured, he had a right to be compensated for such injury. This is quite correct. If the defendants did plaintiff a wrong, they should make compensation both for the pecuniary and for the mental injury.

The question whether the train agent waived the defendants’ regulations, and agreed that the plaintiff might “ stop over ” without receiving a “stop-over” ticket, was properly left to the jury. The evidence of the plaintiff was sufficient to justify the jury in finding that such an agreement was made by the train agent. There was some contradictory evidence; but the train agent did not recollect the plaintiff, and really his testimony depended only on his knowledge of his ordinary custom in such matters.

The only remaining question respects the authority of the train agent to vary the rules and regulations of the defendants; or, more accurately, it respects the right of the plaintiff to trust to, and act upon, the agreement made with him by the train agent. The cases proved on the trial-as evidence of Pennsylvania law do not aid the defendants on this point. In Dietrich v. Penn. R. R. Co. (71 Penn. St. R., 432), it appears that the plaintiff did not “ stop over ” by the consent of any person. In Oil Creek and Al. R. R. Co. v. Clark (72 Penn. St. R., 231) the same fact appears. In both cases the passenger got off the train without any consent or promise from any one, that he might continue his journey on another train.

But in the present case the jury must have found that the train agent, (an officer who appears to exercise the authority usually given to conductors,) informed the plaintiff, before he got off the train, that he might resume his journey on the next train upon the same ticket. On the strength of this assurance the plaintiff got off, thus surrendering the right of riding any farther upon that train. Unless, then, the plaintiff was to be permitted to act on the assurance of the train agent, the defendants, through their agent, would be allowed to perpetrate the fraud of depriving the plaintiff of part of the benefit of his contract by a false statement. The defendants, by inducing the plaintiff to get off the train, relieved themselves of the risk and labor of transporting him on that train any farther. They must therefore fulfill the statement by which their agent induced the plaintiff to get off; inasmuch as it was a statement as to which the plaintiff was clearly entitled to rely upon the train agent.

The train agent was in control of the train. He was evidently the officer of whom passengers should inquire as to what they might do in respect to their journey, according to the rules of the company. It was within the scope of his apparent authority to tell the plaintiff what the effect would be of his getting off that train. (Story’s Agency, § 452; Penn. R. R. Co. v. McCloskey, 23 Penn. St., 526.)

The defendant cites Denny v. N. Y. C. and H. R. R. R. Co. (5 Daly, 50), but in that case the plaintiff had got off a train by the consent of the conductor, and had got on another. He then got off the second without any consent from the conductor, and it was held that the former permission did not give him a right to get on a third train. He had resumed his passage under a continuous ticket, and he had obtained no permission to get off from the conductor under whom he was then traveling. That is not the present case.

We think that the judgment and order should be affirmed, with costs.

Bocees and Boardman, JJ., concurred.

Judgment and order affirmed, with costs.