author: PuTHAit, J.

text:
    The People, Resp’t, v. John Brow, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Trial—Charge.
    A trial court, instead of charging that the defendant or a witness, whose testimony is in conflict, has upon the trial perjured himself, should leave it to the jury to determine whether one of such witnesses was mistaken or had intentionally sworn falsely.
    2. Same—Opinion op court.
    It is error for the trial court, in its charge to the jury, to refer to the testimony of a witness in such a way as to inform the jury that in the opinion of the court the testimony of such witness is false.
    3. Same—Comments on testimony.
    It is error for the court, in a criminal case, by comments on the evidence in charging, to show that he believes that the testimony as to a criminating admission by defendant was not in a joke, when the witness, who testified to such admission, said that at the time they believed he was joking, and defendant testified that he was then joking.
    4. Evidence—Testamentary.
    Upon the issue as to the age of the complainant in a prosecution for abduction, a record by a former teacher in her own handwriting, of the attendance of complainant and other pupils, where she testifies that she inquired of the pupils their ages when she opened school and set it down in the record, and without looking at the record she was unable to remember what the complainant told her as to her age, iridependently of the memorandum, is inadmissible.
    5. Witness—Assumption.
    The admission of a question to a witness, which assumes as proven by the evidence a material fact not proven, is error.
    Appeal from a judgment convicting the defendant of the crime of abduction.

      John 0. Keeler, for app’lt; Ledyard P.^Hale, for the People.
   PuTHAit, J.

The defendant was indicted in the court of oyer and terminer of St. Lawrance county, on the 3d day of October, 1894, for the crime of abduction. The indictment charged that defendant, with others, on the 4th day of August, 1894, took, received, employed, harbored and used, and caused and procured to be taken, received, employed, harbored and used, a female under the age of sixteen years, to wit, one Ida Jones, for the purpose of nrostitution, and for the purpose of sexual intercourse; neither of said defendants being her husband. Defendant pleaded not guilty, was tried separately in the court of sessions of St. Lawrence county, and found guilty. From the judgment of conviction he has appealed to this court.

Defendant, on the trial, controverted the allegations in the indictment, that he had had unlawful relations with complainant, and also that she was under sixteen years of age. After a careful consideration of the evidence produced by the parties on the trial, and the exceptions taken by defendant to the rulings and the charge of the learned trial court, we have reached the conclusion that the judgment of conviction must be reversed on account of some mistakes in the instructions given by the trial court to the jury, and rulings made by him on the trial. One of the witnesses called by the people was Asa Hawley. He testified to a conversation with defendant on the day of the alleged abduction, which tended to corroborate the testimony of complainant. His testimony was contradicted by defendant. The trial judge, in his charge to the jury, made the following remarks:

“ What interest had Mr. Hawley in this case to go upon the stand and tell a falsehood ? Because, gentlemen, one of these two men have done it. We look at the English language, or use it, just as it means, and there is not any use of saying to you that one of these men is mistaken. That is not true. There is no mistake about it. Where an occurrence occurred last August, and one man goes upon the stand and swears positively that a certain thing did occur, and, on the other hand, another person comes upon the stand, and swears that it did not, one of them is telling an untruth. It is for you to say which one it is. What interest had Mr. Hawley to go upon the witness stand and tell an untruth in this case? Has he got any? Is he a disinterested witness? That is for you to say. What interest had Mr. Brow in this case? = You are to take his testimony just the same as any other witness; but it is my duty to say to you, gentlemen, that when he is a. witness upon the stand he is a witness who stands here charged with a felony, and you have a right to.take into consideration, in determining what weight you will give to his testimony, the fact that he is a witness who is here charged with a crime.”

We think the court erred in thus instructing the jury that either Mr. Hawley or defendant, in detailing the conversation referred to, had uttered falsehood. He should have allowed the jury to pass upon the matter. The jury might well have determined that one 'of the witnesses was mistaken, and not guilty of deliberate perjury. An examination of the testimony given by Mr. Hawley shows that his recollection of the conversation he had with the-defendant on the day of the abduction was not clear, and it is a well-known fact that honest witnesses, in detailing a conversation that occurred months before, often materially differ in their recollections. Hence the trial court, instead of charging that either defendant or Hawley had upon the trial perjured themselves, should have left it to the jury to determine whether one of the witnesses was mistaken or had intentionally sworn falsely.

Again, in the portion of the charge above quoted the trial court inadvertently allowed his opinion as to the respective credibility of the testimony of defendant and Hawley to appear. He did not directly instruct the jury to believe the statement of Hawley and disbelieve that of defendant, but the jury were not left in doubt as to his opinion. It has been properly held error for a trial court, in its charge to the jury, to refer to the testimony of a witness in such a way as to inform the jury that in the opinion of the court the testimony of such witness was false. A party to an action is entitled to a determination of the jury on the question of the credibility of witnesses uninfluenced by the opinion of the court. People v. Gorman, 83 Hun, 605; 65 St. Rep. 41; McKenna v. People, 81 N. Y. 360, 363.

The court also used the following language in regard to the same conversation between Hawley and defendant:

“If he was down there simply buying blackberries, why did he say to Hawley (if you find he did say so) that he had everything arranged, and that Welch wanted him (Hawley) to go down? What was it that was arranged? That’is for you to say. You remember the response that Mr. Hawley gave. It may have been a slang phrase, perhaps, but it means a good deal, that he was not ‘in it'; that is the reply that Mr. Hawley"says he made to Mr. Brow. You are to say, if Mr. Brow made that statement, why did he make it.”

In so instructing the j ary the court did not state the facts correctly. The witness Hawley, in first detailing the conversation with defendant, testified that defendant said:

- “That Willie Welch wanted him and I to go down there. I told him I wasn’t in it. He said he had got things all fixed, and Will Welch wanted him and I to go down there. That’s all there-is to it.”

Afterwards, on being further interrogated in regards to that conversation, he corrected his testimony as follows:

“ Q. Did you tell him you wasn’t in that kind of business? A. I don’t remember whether I did or not. Q. Did I understand you tp swear a moment ago that you said to him when he was-talking there .that you wasn’t in it? A. Yes, sir. Q. Did you say that to him ? A. I don’t remember whether I said those very words or not.”

It was, therefore, a mistake on the part of the court to say to-the jury that in the conversation referred to Hawley responded to defendant that “he wasn’t in it,” and that such response “ means a good deal.” The effect of Hawley’s testimony was to leave it uncertain whether he made the remark which the judge thought meant a good deal.

John and Henry Randall had" been called by the people to prove an admission by defendant to the effect that he (defendant) had intercourse with complainant at the time of the alleged abduction. John Randall testified that defendant, at the time he made the admission, he was joking and laughing, and he could not tell whether he meant it or not. Henry Randall said, “I took it they were joking together.” Defendant testified that what he said to John and Henry Randall was said as a joke. Hence the witnesses who testified in regard to the admission made by defendant of having had intercourse with complainant at the time in question gave evidence from which the jury could have well found that the admission was a mere remark, intended as a joke, and not to be taken seriously. And the statement of these witnesses in that regard was not improbable. Would defendant be likely to seriously admit the commissson of a felony for which he could be sent to state prison? The trial judge charged in.regard to the admission as follows:

“It has been called out upon this trial that some few days after this occurred, — whatever it was, — that Mr. Brow, in his barber shop, in the presence of three men, admitted that he had intercourse with this girl down there in the bushes. * * * He says to-day it was a joke. It is for you to say whether it was a joke or not. That is" the way he puts it. He says it was done in a joking way. You have a right to say whether it is a subject which a married man, living in the town of Colton, would be likely to joke about.”

The trial judge evidently thought that the admission was not made in the way of a joke, and allowed the jury to see what his opinion was. We think his remarks were objectionable for the reasons above stated. In an indirect way he informed the jury that he did not believe defendant’s testimony to the effect that what he said to the Randalls about his intercourse with complainant was not intended seriously.. The mistakes above referred to tended to the prejudice of the defendant on the trial, and prevented him from obtaining the uninfluenced verdict of the jury on the questions of fact in the case.

One question sharply contested on the trial was as to the age of the complainant. Defendant called Mary Hayes, a school teacher, with whom complainant attended school in 1891. The witness testified that she knew complainant, and a record in her own handwriting of complainant’s attendance and the attendance of the other pupils; that she inquired of the pupils their ages when she opened school, and set it down in a record. She testified, in'substance, that pupils gave their ages when they came to school, and she took their ages, and set them down, and that the record produced was a record made by her at the time. The witnesses afterwards looked at the record and was unable to remember what the .complainant told her as to her age, independently of the memorandum. Defendant then offered to read the memorandum in evidence, but the court excluded it. This, we think, was error. The record was an original memorandum kept by the witness, required to be kept by her; and if, on looking at it, she was unable to remember the fact of the age of complainant, the memorandum itself was competent evidence. Nat. Ulster County Bank v. Madden, 114 N. Y. 280; 23 St. Rep. 220. The evidence so offered was important, and its exclusion may have affected the result of the case.

We also think the objections to-the following questions asked of the witness Hawley should have been sustained: “Q. What answer did you make to the defendant when he asked you to go down there, that they had go it all fixed up?” And, “At the time he asked you to go down there, was the girl down there with Welch,—down the road? ” The witness Hawley had not testified that defendant asked him to go down • there, but that defendant had told him that Willie Welch wanted him and defendant to go down there. The allowance of the questions by the court which assumed that the previous evidence of the witness showed a request on the part of defendant to Hawley to go down where the complainant was at the time of the alleged abduction to prejudice defendant before the jury.

There are very many other exceptions taken by the defendant to the ruling on the trial and to the charge, which we do not-deem it necessary to discuss.

For the reasons above stated, the judgment should be reversed and a new trial granted.

All concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Maria Ten Eyck et al., Resp’ts, v. Catharine A. Whitbeck et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Deed—Possession—Presumption of delivery.
    The execution of a deed, and its possession by the grantee, raise the presumption that it was delivered on the day of its acknowledgment.
    2. Same.
    The circumstsnces relied upon to overcome the presumption of delivery were held in this case, not to have been sufficient to warrant the submission of that question to the jury.
    Appeal from a judgment on a verdict, directed in favor of plaintiffs. ,

      C. M. Barlow (Hale, Bulkeley & Tennant, of counsel), for app’lts; W. O. McHarg (J. 3. Clute and 3. Countryman, of counsel), for resp'ts.
   Herrick, J.

This case has been before the court several times (39 St. Rep. 634; 15 N. Y. Supp. 418; 135 N. Y. 40; 48 St. Rep. 251; 69 Hun, 450. 52 St. Rep. 715), and most of the legal questions have been eliminated. On both occasions when it was before the general term of this department, there was a thorough examination of the facts. The additional evidence elicited upon the trial now under review does not seem to me to-change in any essential particular the facts as they appeared when the case was last under consideration by us.

Upon the question of delivery, in addition to the presumption of delivery which arises from the possession of the instrument by the grantee, there is positive evidence — First, of the delivery of the deeds at the time of their execution; and second, of their having been seen in the actual possesssion of the grantee, Mrs. Ten Eyck, several years after their execution, and before their recording. The circumstances relied upon to overcome the presumption of delivery do not appear to me to have been sufficient to warrant the submission of that question to the jury. The case was tried by the same justice who examined the case and wrote the opinion when it was first before this court upon appeal (39 St. Rep. 634; 15 N. Y. Supp. 418); and his discussion of the evidence on the questions of delivery and undue influence, at the conclusion of the trial, is satisfactory, and affords no reason for any further discussion upon those subjects by this court.

I can see no reason for arriving at any different conclusion from that arrived at by us when the case was last before this court, and any doubts expressed at that time as to the propriety of submitting to the jury any question as to the delivery of the deed or deeds have been removed.

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


author: Per Curiam.

text:
    Rachel Salzberg, App’lt, v. Joseph Mandelbaum, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Attachment—Affidavits.
    An affidavit is sufficient to support an attachment, where it alleges that defendant had caused a pretended mortgage of his property to he recorded with intent to defraud his creditors, and the only proof offered of such fraudulent intent was the affidavit of one who stated that certain alleged real owners of the property had admitted that the mortgage was fraudulent.
    Appeal from an order vacating and setting aside a warrant of attachment.

      Adolph Cohen, for app’lt; Ira Leo Bamberger, for resp’t.
   Per Curiam.

Order affirmed, with costs, on the opinion of the court at special term.

The opinion of Mr. Justice O’Brien at special term is as follows:

This attachment was granted upon the ground that the defendant had fraudulently disposed of his property, and it is assailed upon this motion upon the ground that the papers are insufficient. After a statement of the plaintiff’s cause of action, the affidavits recite, in effect, that the defendant conveyed the property No. 232 East Ninety-Seventh street to one Joseph Holtzberg; and while we have the conclusion stated that this was fraudulently done, there are no facts to support it. In addition, it is stated that the defendant' now holds the title to premises No. 97 Perry street, and that with intent to defraud his creditors he disposed of his equity in the premises by causing a pretended mortgage for $7,000 in favor of one Lieb Kowalsky to be recorded.

The evidence offered to support the conclusion that such mortgage wTas fraudulent consists of the affidavit of a person who states that Simon Rose and Abraham Mandelbaum, who it is alleged, were the real owners of the property, had admitted that such mortgage was fraudulent. Such an affidavit is insufficierit, for either the defendant was the real as well the ostensible owner of the Perry street property, in which case be could not be affected by admissions made by third parties who are not his agents, and who hold no such relations to him as to make their admissions binding, or if we trike the other view, that the persons who admitted that the mortgage was fraudulent were the owners, and the defendant was only the ostensible owner, then their creditors, and not the defendant’s were defrauded by such mortgage. There are other objections to the validity of this attachment, but the one suggested as to the insufficiency of the papers upon which the attachment was granted need only be referred to.

The motion is accordingly granted with $10 costs.


author: Ward, J.

text:
    Stannards Corners Rural Cemetery Association, Pl’ff, v. Charles Brandes, Def’t.

      (Supreme Court, Alleghany Special Term,

      Filed October, 1895.)

    1. Cemetery association—Eminent domain.
    Rural cemetery associations, whose certificate of incorporation or by-laws do not exclude any person, can constitutionally secure the condemnation " of lands for cemetery purposes.
    3. Same—Petition.
    The failure of a petition by a cemetery association to condemn land to allege that its charter or by-laws did not exclude any person from purchasing a lot oh equal terms with others, cannot be cured by amendment, as the averment is jurisdictional.
    Proceeding to condemn land.

      Frank Church, for pl’ff; Oscar Fuller, for def’t.
   Ward, J.

The Stannards Corners Rural Cemetery Association was incorporated under chapter 133 of the Laws of 1847, and the acts amendatory of the same, providing for the incorporation of rural cemetery associations to acquire title to lands by condemnation proceedings. This provision was held to be unconstitutional by the court of appeals in Re Deansville Cemetery Ass’n, 66 N. Y. 569, for the reason that, under the statute cited, the lands to be taken were not for public use. The court says at page 573:

“It is difficult to see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured. The prices at which the lots are to be sold are to be fixed by private agreement. The corporation is to be managed by trustees elected by the lot owners. The lots, or the rights of the owners therein, are to descend as private property of the heirs of these owners,” etc.

Therefore, the relief sought upon this motion could not be obtained under the statutes under which the petitioner was incorporated. It, however, claims that it is -entitled to such relief under article 8 of chapter 559 of the Laws of 1895. This article 8 is entitled “Cemetery Corporations,” and provides for the incorporation of cemetery associations, and applies to all such associations theretofore created for cemetery purposes under a law repealed by that chapter or thereafter to be created, except family cemeteries. In the schedule of laws repealed attached to chapter 559, prior laws creating such rural cemetery associations are repealed, so that, by force of chapter 559, the petitioner is embraced within its provisions.

By section 45 of the last-mentioned act it is provided:

“If the certificate of incorporation or by-laws of a cemetery corporation do not exclude any person from the privilege on equal terms with other persons of purchasing a lot or of burial in its cemetery, such corporation may, from time to time, acquire by condemnation, exclusively for the purposes of a cemetery, not more than two hundred acres of land in the aggregate forming one continuous tract, wholly or partly within the county in which its certificate of incorporation is recorded,” etc.

By section 49 of the act:

“I'he corporation, unless its certificate of incorporation or bylaws otherwise provide, shall, subject to its rules and regulations, sell and convey to any person the use of the lots or plats designated on the map filed in the office of the corporation, on payment,” etc.

These provisions would seem to indicate that the purpose of chapter 559 of the Laws of 1895 was to open these rural cemeteries to all persons upon equal terms, and thus make their use public in such a sense as would permit them to acquire lands by condemnation proceedings, and I think that the purpose of the statute has been accomplished, and the objection'which obtained in 66 N. Y., supra, has been avoided, and that rural cemetery associations, whose certificate of incorporation or by-laws do not exclude any person, can constitutionally secure the condemnation of lands for cemetery purposes.

The defendant, upon this motion, however, objects that it does not appear from the petition that the certificate of incorporation of the petitioner or its by-laws “do not exclude any person from the privilege, on equal terms with other persons, of purchasing a lot or of burial in its cemetery.” This objection is well taken, and is fatal to the motion. It was suggested upon the argument by the counsel for the petitioner that, if the court deemed the petition defective in this or other respects, it might permit an amendment of the moving papers. The allegation omitted being jurisdictional, it cannot be well cured by an amendment, and the safer practice would be to move de nova if this objection can be avoided. The motion, must be denied, with $10 costs, with leave, however, to the petitioner to renew the motion upon such papers, in addition to the ones used upon this motion, as it may be advised. •

Motion denied, with $10 costs, with leave to renew.


author: ■ O’Brien, J.

text:
    Isaac H. Terrell, Pl’ff, v. William L. Strong, as Mayor, et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed August, 1895.)

    1. Municipal corporations—Contracts—Fraud op commissioners.
    The mere fact that a contract is awarded to the one who is not the lowest bidder, is not sufficient to establish fraud.
    2. Same—Improper influence.
    The evidence, in this case, was held not to be sufficient to show that the award of the contract to a person who is not the lowest bidder was the result of improper influence.
    3. Same—Notice to mayor.
    The validity of an award of a contract by aqueduct commissioners is not affected by the fact that the mayor was not notified of the meeting at which the award was made.
    4. Same—Discretion.
    The aqueduct commissioners have power to reject any or all bids, and their discretion will be controlled by the courts only when necessary to prevent fraud, or whenever it is shown that those in whom the discretion is vested are prepared, illegally or corruptly, to trample upon rights or sacrifice interests intrusted to their care.
    Action to set aside a contract made by the aqueduct ■ commissioners.

      Browne & Sheehan (Edward Browne and William Fn Sheehan, of counsel), for pl’ff ; Francis M. Scott ( William M. 1 urner and Terence Farley, of counsel), for def’t.
   ■ O’Brien, J.

Plaintiff, a taxpayer, brings this action to obtain a judgment preventing waste and injury to the city funds. It appears that the aqueduct commissioners advertised for sealed bids or proposals for the construction and building of a reservoir at Jerome Park; that among a number of other bids received were those of John O’Brien for $5,297,370, and John B. McDonald for $5,472,080 ; that O’Brien’s bid is $174,710 less than McDonald’s, and was the lowest bid made for the work. The estimate of the chief engineer was $5,882.690. It is alleged that the commissioners not only arbitrarily and wrongfully refused to award the contract to O’Brien, but wrongfully awarded it to McDonald, and that their action was influenced by unlawful means, and against the interests of the city ; that such award was fraudulently made for the benefit of a favored bidder ; that the giving of $174,710 more than they could procure the work to be done for is a waste of public funds. If these charges were sustained, then undoubtedly the court would enjoin the making of the contract with McDonald. I have looked in vain for any evidence to sustain the charges that the commissioners acted “ fraudulently,’’ or were influenced by “ unlawful means,” nor do I think that plaintiff seriously contends that there are any facts upon which such conclusions can be supported.

Without spending time on these, we find that the greatest stress is laid upon the claim of favoritism for McDonald, and prejudice against O'Brien. Apart from that fact the contract was awarded him, there is no evidence of partiality or favoritism toward McDonald. The charge of prejudice, which, it is said, one of the commissioners had against 0" Brien, is supported by the latter’s statement that third persons told him that one of the commissioners had expressed a prejudice. These persons deny that tiiey had made such statements t.o O'Brien, and we have the affidavit of the commissioner accused, which asserts that he never made such statements and never entertained such prejudice. It is to be noted that such commissioner did not vote to award the contract to McDonald, and did not succeed in getting liis associates to vote witli him in favor of the contractor whom he regarded as the best. Even if he entertained such prejudice, it is quite evident that this commissioner had no such controlling influence over his associates as to prevent their asserting their individual wills and judgments. These men, for character and ability, have been selected to conduct a great public work, and it would be a serious reflection on the independence and competency of the entire commission, and justly subject them to removal, if it could be shown that they permitted themselves to be improperly swayed and controlled by one of their number. That they were not-so influenced is clearly apparent from the fact, already stated, that the commissioner whom it is suggested had such-influence stood alone on the final vote making the award to McDonald.

The absence of the mayor, and the failure to properly notify him of the meeting at which the award was made, is claimed to be fatal to the award. The by-laws of the aqueduct commission provide that the regular meetings shall take place bn Wednesdays, and that no other notice of the meeting shall be required. It appeal’s, moreover, that the mayor, from the beginning of the year, did not atfend any of the meetings of the commission, nor was his presence necessary for the transaction of business, for at common law and by the Eevised Statutes (2 Eev. St. p. 555, § 27, as amended by Laws 1874, chap. 821) the rule is the same as is provided by section 46 of the consolidation act, “that a majority of the members of a board * * * shall constitute a quorum to fully perform and discharge any act or duty, * * * with the same legal effect or if every member of any such board had been present.” Here a notice of the meeting was sent to the "mayor’s office during his absence from the city. As shown, even if no notice was sent at all, this would not invalidate the action taken by the other commissioners at a meeting regularly held and at which a quorum was present.

This brings us to the real and only serious question based on the contention that the award as made is a waste of public funds. At first blush it would seem as though the court should require some satisfactory explanation before it would sanction a transaction in which $175,000 of public funds was seemingly unnecessarily expended for a public work. The' extent to which the court can go interfering with these commissioners must dep,end upon the statutes creating them, construed in the light of controlling decisions. By Laws 1883, chap. 490, § 28,-it is provided that, after the bids or proposals shall have been opened, the commissioners may “ select the bid or proposal the acceptance of which will, in their judgment, best secure the efficient performance of the work, or they may reject any or all such bids.” And section 80reads:

“ No contract shall take effect until the commissioners, or a majority of them, shall certify thereon in writing that its acceptance will, in their judgment, best secure the public interest and the efficient performance of the work therein mentioned.”

Here the statute does not require the commissioners to award the contract to the lowest bidder, and those who .voted in awarding the contract swear that the acceptance of McDonald’s bid will, in their judgment, “ best secure the public interest and efficient performance of the work.” This aqueduct act has been construed in at least, two cases in this court. In the case of Ebling v. Commissioners, where, singularly enough, the-plaintiff there sought on much the same grounds as are here presented, to prevent the award of a contract to O’Brien & Clark on the grounds that their, bid was not the lowest and that they were favored contractors. Mr. Justice Barrett, in denying the motion for a preliminary injunction, among things said :

“ The law- permits the commissioners to reject all the bids which may be presented to them. It also permits them to accept whatever bid they think will produce the greatest efficiency in the performance of the work. That is the legislative policy upon which this particular work is being constructed. We have not power, sitting as a court of equity, to limit the range of selection on the part of these commissioners. * * * The difficulty here, as I sáid before, is that the legislature has given a wide discretion to these commissioners. The usual policy of the law has been abandoned, namely, that the work should be given to the lowest bidder. If the commissioners think that the giving of the work to one who is not the lowest bidder will insure efficiency, they have the power to give it to him.”

And, in speaking of what should appear to justify the court’s interference, he continues:

“ That the work was given to one who is not the lowest bidder, fraudulently, or upon some corrupt understanding.”

This, and other cases that might be cited, show that a court of equity has norightto interfere with and control the exercise of the, discretionary power vested in a public body such as the aqueduct commission. Undoubtedly, it will interfere, when necessary, to prevent fraud, injustice, or the violation of a trust, and whenever it is shown that those in whom the discretion is vested are prepared, illegally or corruptly, to trample upon rights or sacrifice interests intrusted to their care, then the courts will interfere to prevent the consummation of a fraud. The law presumes honesty rather than fraud, and it will not, in the absence of proof, conclude that a discretion vested in a public body is being fraudulently exercised. Here we have charges of illegality and fraud, but these are mere conclusions unsupported by a single fact other than the one that there is a lower bidder than the one to whom the contract is to be awarded. If this were enough, then the law which expressly permits the commissioners to select any bidder, whether the lowest or not, would be nullified.

I have been referred to many cases by plaintiff's counsel, among them Winkler v. Summers, 51 Hun, 686. That arose under the charter of Buffalo. It gave the common council power to purchase lands for school and other purposes. The common council, after examining various proffered sites, selected one which the owner offered to sell for $11,000, and at winch sum the council directed the controller to purchase. Upon an application for an injunction to restrain the sale, it was shown that the property was not worth more than $8,000, and that no effort to obtain the property at its real value was made. Injunctive relief was therein awarded on the ground that it involved “ an appropriation of a large sum of money belonging to the public, for which no equivalent was to be received by the city.” The distinction between that case and the one at bar is apparent. Here the bid of McDonald was less than the engineer’s estimate, and, whether his or O’Brien’s bid be selected, it can hardly be claimed at this time that the city will not receive an equivalent. It is impossible, now, to determine whether the engineer of the commission or the contractors are right in their estimates, and this is made clear when we recall that the bids made bv the various contractors for this work vary from a little over $5,000,000 to over $18,000,000. The legislature left the determination of the persons who should do the work and the price they should receive to the judgment and discretion of the commissioners, and it has never been held, even though they erred or were mistaken, that a court could substitute its own for the judgment and discretion of the commissioners.

I have attempted already to point out what are the limitations to the general rule that a court of equity has no right to interfere with and control the exercise of discretionary power vested in a public body. But I might well have rested my conclusion upon Judge Barrett’s reasoning in the case cited, and the well-considered case in the general term, Second department, recently decided, of Adamson v. Nassau E. Railroad Co., 89 Hun, 261, 270 ; 67 St. Rep. 554. There the common council of Brooklyn awarded a franchise for a street railway to the defendant, though they had a higher offer from another company of many thousands of dollars for the same franchise. In reversing the injunction order the court, among other things, said:

“It would be a very narrow view of the powers and duties of municipal officers' that would confine their exercise to the aggrandizement of the local treasury. Financial considerations are not alone to control in granting permission to prosecute the various enterprises conducted by individuals and private corporations within the municipality.”

And, in speaking of the statutes which gave a right of action in favor of taxpayers, reference is made to the case of Talcott v. City of Buffalo, 125 N. Y. 286 ; 34 St. Rep. 871, wherein it was said:

“The terms ‘waste’ and ‘injury,’used in this statute, comprehend only illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of boards, officers, or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court without some proof or allegation that the official act or proceeding complained of was without power or was tainted by corruption or fraud.”

I deem it unnecessary to quote further from that case or to multiply authorities, as it seems reasonably free from doubt, upon the facts here appearing, that the court would not be justified in interfering with the commissioners.

Motion for an injunction is accordingly denied.


author: Bischoff, J.—The Pryor, J.

text:
    John M. Canda et al., Resp’ts, v. John Casey, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895 )

    Principal and agent—Ratification.
    Tile delivery of goods under an oral contract of sale, made by the vendor’s agent, is a ratification of such sale, though the agent had authority to make a written contract only and the delivery was made on the agent’s-assurance that the vendee would sign a written contract.
    Appeal from a j udgme'nt in favor of plaintiff.

      M jET. Benn, for app’lt; J. Woolsey Shepard, for resp’ts. .
   Bischoff, J.—The

complaint was upon upon a quantum valehat for certain building material, consisting of brick, lime, and cement, which was alleged to have been sold and delivered to the defendant ; and the answer denied both the quantity and value of such material. For a further defense it was asserted that the delivery made was in the furtherance of an express contract, which fixed the prices and terms of payment, and whereby 'the plaintiffs undertook to supply and sell, and the defendant assumed to receive and purchase, all the brick, lime, and cement necessary for the-construction of certain houses on West Eighty-Eighth street, in 'the city of New York; and that-the plaintiffs had failed to complete their performance of such contract. By way of counterclaim,also, the defendant demanded damages which he alleged had resulted to him from the plaintiffs’ aforesaid breach of contract. _The referee found that no such express contract was entered into, and dismissed the counterclaim, besides awarding the plaintiffs a recovery in the full amount of their claim. Such disposition of the cause appears from the referee’s decision to have resulted from the absence of the authority of the plaintiffs’ agent to make the contract contended for by the defendant. It was contended upon the-trial that one R. A. Matthews was the plaintiffs’ salesman, and that he conducted, the negotiations with the defendant for the supply of such building material. Matthews, as a witness for the plaintiffs, testified that, acting for his employers, he offered to supply the defendant with brick, lime, and cement at specified prices, provided the latter would agree to take all such material as would be required in the construction of the houses alluded to from the plaintiffs; that the defendant promised to consider the proposition, and did not at once accede to it; that on August 22, 1892, the witness called upon the defendant to inquire with regard to the latter’s acceptance, and at that time informed him that the plaintiffs would only make the contract provided the defendant would accept it in writing, to that end handing the defendant counterparts of a proposed written contract,—the one containing the plaintiffs’ proposition having been signed by the witness in the plaintiffs’ behalf, the other, containing the acceptance, to be signed and returned by the defendant; that the defendant, some days later, refused to make any but an oral contract; that upon the witness’ assurances to the plaintiffs that the defendant would sign the acceptance they assented to the subsequent delivery of material to the defendant, and that the defendant persisted in his refusal to sign the acceptance. From the testimony of John P. Kane, one of the plaintiffs, it appeared that on September 21st they finally demanded such written acceptance of the defendant, and, upon the latter’s refusal, discontinued delivery of the material. The express contract pleaded by him was predicated by the defendant of the submission of the proposed written contract, his refusal to accept such contract in writing, and the subsequent delivery and acceptance of material: and the damages were claimed to have resulted'from the purchase of brick at advanced rnarke. prices after the plaintiffs had refused to continue their sup ply t The contract in question involved the sale of material exceeding §50 in value.

As a rule, an agent employed to sell has implied or apparent authority to conclude his principal by contract within the scope of his employment. Haydock v. Stow, 40 N. Y. 368, 369; Stirn v. Hoffman House Co., 8 Misc. Rep. 246, 249 ; 59 St. Rep. 229. Here, however, before any oral contract with the agent was concluded and had become operative by performance in part (3 Rev. St. [Banks & Bros.’ 7th ed.] p. 2328, § 3 ; Jackson v. Tupper, 101 N. Y. 515), the defendant had express notice that Matthews’ authority, in the instance, at least, of a contract with the former, was restricted to the making of a contract upon the defendant’s acceptance in writing. Such notice precluded the defendant from asserting a contract with the plaintiffs, made through the instrumentality of their agent, and with reliance upon the latter’s other, wise implied or apparent authority. Frankfurter v. Insurance Co. 10 Misc. Rep. 157, 160 ; 62 St. Rep. 521. Obviously, an agent cannot, upon any proper theory of a waiver of his' principal’s instructions, arrogate to himself authority not conferred. But, while we concur in the view of the referee that Matthews was without authority to make an oral contract for the plaintiffs, the facts preseated a ratification by the latter oí Matthews’ assent to such, a contract. Notice to Matthews of the defendant's refusal to enter into a written contract was-in the course of the former employment, and therefore imputable to the plaintiffs (1 Am. & Eng. Enc. Law, 419, etc.; note to Trentor v. Pothen [Minn.] 24 Am. St. Rep. 228, [49 N. W. 129]); and the delivery of material, with knowledge of the facts and circumstances (Craighead v. Peterson, 72 N. Y. 279 ; Ritch v. Smith, 82 N. Y. 627) on the plaintiffs’ part, served to indicate their intention to accede to the defendant’s proposition that the contract should be an oral one. As already stated, • delivery and acceptance in part dispenses with the need of a note or memorandum in writing to render the oral contract binding. Jackson v. Tupper, supra. It may be that the plaintiffs were deceived by Matthews, and that they were induced, as appeared from Kane's testimony, to deliver the material sued for without first having secured the defendant’s written acceptance of their proposition by their salesman’s representations that the defendant had promised to and.would so accept; but even so, it did not appear that the defendant, at the time of the delivery, knew of the misconduct of the plaintiffs’ agent and employe in the respect alluded to, or that he at any time connived at it. Such salesman’s misconduct towards his employers cannot, therefore, be visited upon the defendant who, with reliance upon the plaintiffs’ apparent assent to supply him"with material without insisting upon a written acceptance of their proposition, may have abstained from seeking such supply elsewhere before the market value of such material had advanced. Briggs v. Jones, 8 Misc, Rep. 261, 263 ; 59 St. Rep. 393. The contract established by the defendant being a divisible one, the plaintiffs were entitled to recover for their part performance. Tipton v. Feitner, 20 N. Y. 423; Dowley v. Schiffer, 36 St. Rep. 869; but it was error to dismiss the counterclaim, the breach appearing from the conceded facts.

Judgment reversed, reference discharged, and new trial ordered, with costs to the appellant to abide the event.

Bookstaver, J., concurs.

Pryor, J.

My conviction is that the case was well determinpd by the learned referee, and I am for affirming the judgment.


author: Bischoff, J.

text:
    Maud A. Griswold, App’lt, v. Meta J. B. Caldwell, Individual and as Trustee, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Parties—Substitution
    Sections 452 and 453 of the Code have reference to persons who are necessary parties from the beginning of the action.
    2. Same.
    A substituted trustee, who succeeds to the right and interest of the former trustee, can be brought in as party only under sections 75(5-760, which provides for bringing in as a party one on whom the right and interest .of the original party has devolved.

      Appeal from an order, granting the motion of the substituted trustee to be brought in as a party defendant.

      O. N. Bovee, Jr., for app’lt; Benjamin N. Cardozo, for resp’fc
   Bischoff, J.

The action is for the foreclosure of a mortgage on real property, and at the time of its inception the equity of redemption was in Meta J. B. Caldwell, as trustee under the will of Stacy Pitcher, deceased. Mrs. Caldwell was made a party defendant as such trustee, and was named as such in the summons, complaint, and notice of pendency of the action which was filed. After having defaulted in pleading in this action, and in proceedings instituted in the supreme court for her removal as such trustee, she resigned her trust, and conveyed the mortgaged property to Franklin Bjen, as trustee appointed in her place and stead. Before the time of the defendants to plead had expired the new trustee applied to be made a party to this action, claiming a right to that effect under sections 452 and 453 of the Code of Civil Procedure. In support of his application he asserted by affidavit that under the will of Stacy Pitcher the trustee was empowered, under certain conditions, to sell, but not to mortgage, the land embraced within the trust; that Mrs. Caldwell had' united with the plaintiff to evade the limitations of the will, and to mortgage and incumber the property, in contravention of the trust; that for a nominal consideration, and in form only, she had conveyed the property to one Church ;■ that Church had then mortgaged it to one Bust: that Bust had thereupon assigned the mortgage, without consideration, to the plaintiff; that Church had then reconveyed the property, without consideration, to Mrs. Caldwell, as trustee; that the moneys secured by the mortgage were in fact loaned, not by Bust, but by the plaintiff, and were in fact received not by Church, but by Mrs. Caldwell; that the full sum as stated was at no time advanced upontne mortgage, and that the plaintiff was at all times cognizant of the purpose and design of the trustee. The notice of motion also prayed “ for such other and further relief as to the court may seem just,” and the order which was made and entered against the plaintiff’s objection, directed that the substituted trustee ¡-hould “ be brought in ” as and made a party defendant to the action ; that the summons, complaint, and the notice of the pendency of the action be amended accordingly ; and that such amendment be without prejudice to the rights of the parties and the proceedings already had, except that the right of the new defendant to service of the summons .and complaint upon him, and to defend the action, should in no sense be held impaired. From the order tiré plaintiff has taken this appeal.

It was urged in the plaintiff’s behalf that the application of the substituted trustee should not be granted because of the former trustee’s retention of the avails of the mortgage. The tenability of this plea is at least questionable. Wetmore v. Porter, 92 N. Y. 76. Hence, the proposed defense to the mortgage was not, upon the motion, to be disposed of upon its merits. Johnston v. Donovan, 106 N. Y. 269-271; 8 St. Rep. 676. We are, however, of the opinjon that the order was erroneous in that it directed the new trustee to be added as a party defendant, and not substituted in the place .and stead of the former trustee and defendant. Had the latter course been pursued no amendment of the notice of the pendency of the action would have been requisite (Code Civ. Proc. §§ 1670; 1632), as the substituted defendant would, have taken the place of the former defendant cum onere. Hegewisch v. Silver, 140 N. Y. 414; 55 St. Rep. 808. Nor would the substituted defendant be entitled to service upon himself of the summons and complaint, or to defend the action, notwitstanding the default in pleading of his predecessor in interest, as a matter of right. If the default was in furtherance of. the alleged scheme to incumber and sell the property, the substituted trustee’s right to relief.would seem to be enforceable only by an appropriate action.

The facts do not present a case within the purview of sections 452 and 453 of the Code of Civil Procedure. Those sections provide for the bringing in of a new party by amendment or supplemental summons and complaint whenever it appears that a complete determination of the controversy cannot be had without his. presence, or the proposed new party has an interest in the subject of the action, or in real property, the title to which may be in any manner affected by the judgment; but they comprehend only such cases wherein it appears that the interest of the proposed new party in the controversy, or the subject of the action, or the real property, the title to which may be "affected by the judgment, was held by him at the inception of the action, and was not then exclusively represented by one who was made a party. In other words, those sections have reference to persons who were necessary or proper parties from the beginning of the action. ■ Osterhoudt v. Board of Supervisors, 98 N. Y. 239; Pom. Rem. & Rem. Rights, §§ 415, 422. And such were the persons brought in as parties in the .cases cited by the respondent’s counsel. Johnston v. Donovan, 106 N. Y. 269; 8 St. Rep. 676; Rosenberg v. Salomon, 144 N. Y. 92; 63 St. Rep. 62.

The case presented is, moreover, one of a devolution of interest during the pendency of the action, and sections 452 and 453 of the Code would have no application. The scheme of the Code comprehends distinct provisions for bringing in additional parties, or .substituting parties—the one embraced within sections 452 and 453, which apply only to cases in which at the beginning of the action parties sought to be brought in were either necessary or proper parties; the other embraced within sections 755-760, which apply to the bringing in of parties, either by'substitution or addition, upon who has devolved during the pendency of the action the rights and interests of a party or parties already joined in the action. The former may have given them all the rights of original parties, including that of original pleading; but the latter take up the action and become parties at the point upon which the interest devolved upon them, and from that point continue the action, except as to supplemental matters, with the same burdens and in the place and stead of their predecessors in interest. And indeed it is proper, for the due administration of justice, that such should be the case, otherwise the delay of judicial proceedings would be incalculable. In the case at bar the substituted trustee's interest in the controversy, the subject of the action, and the real property, the title to which will be affected by the judgment, was exclusively held and represented at the inception of the action, and the time when the notice of its pendency was filed, by the defendant Caldwell, as trustee. In so far as that interest was concerned, all the necessary and proper parties to enable the court to completely determine the controversy werethen present. For obvious reasons the substituted trustee was not then, a possible party.

The action could not abate by any event (Code Civ. Proc. § 755), but relief might have been extended in this action to the new trustee, under sections 756 and 760 of the Code of Civil Procedure, as indicated. The sections last alluded to, where the application is made by the person to be substituted or joined, authorize the substitution, in the place of a party, of a person who pendente lite has succeeded to the entire interest of such party, or upon whom the entire liability of the latter has devolved ; and the joinder with a party of one who pendente lite has only partly succeeded to the interest of such party, or upon whom the latter’s liability has only partly devolved, by amendment of the pleadings br otherwise, as the case requires. Had this course been adopted in the present action, no question could have arisen with regard to the default in the pleading of the new trustee’s predecessor in interest. The new trustee having succeeded to the entire interest of the trustee, defendant might well, pnder his prayer for general relief (People v. Nostrand, 46 N. Y. 375; Van Slyck v. Hyatt, id. 259), have been substituted as a party in the latter’s place and stead, and relieved from the default in pleading. Upon such substitution the action would have continued from the point to which it had progressed at the time, and the substituted defendant would, without further relief, have been bound by his predecessor’s default in pleading. Moore v. Hamilton, 44 N. Y. 666, 672; Thwing v. Thwing, 18 How. Prac. 458. In view, however, of the duty which the law imposes upon a trustee, to guard the interests committed to him against the collusive and negligent conduct of his predecessor in office, as well as the wrongful acts of others. Cuthbert v. Chauvet, 136 N. Y. 326; 49 St. Rep. 671. The extension of relief from the default in the present case, and upon proper terms, would seem to require approval as an act of wise and judicial discretion. Code Oiv. Proc. § 783.

We may, upon appeal, modify any order, but cannot grant entirely new relief. Code Civ. Proc. § 1317. The order appealed from must therefore be reversed, and the motion directed to be reheard at special term. Id. Costs of this appeal are awarded to the appellant, to abide the event of the motion.

All concur.


author: Pryor, J.

text:
    Louise Knorr, Resp’t, v. Andrew J. Bates et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Contracts—Restricting right to sue.
    A stipulation in a contract, that a party who breaks it may not be sued, is void, because repugnant to the obligation assumed by the contract; and because ousting the courts of jurisdiction.
    2. Same—Action against one not a party.
    Parties to a contract may not, without statutory authority, designate a person to be sued for its breach who is nowise liable upon its breach.
    Appeal from a judgment and order overruling a demurrer to the complaint.

      Lexow, Madceller & Wells, for app’lts; Garter, Hughes & Dvnght (.Arthur G. Bounds, of counsel), for resp’t.
   Pryor, J.

Stating the case in its essential elements only, it is this: The "defendant Douglas R. Satterlee, as underwriter on a policy, insured the plaintiff against loss by ñre. A loss occurring within the scope of the policy, he is sued as underwrittr upon his promise of payment, and he demurs to the complaint as insufficient in substance. The policy, incorporated with the complaint, provides that “ no action shall be brought by the insured to enforce the provisions of this policy, except against the attorneys in fact, as representing all of the underwriters; and each of the underwriters, hereby agrees to abide the result of any suit so brought as fixing his individual responsibilty hereunder.” The specific ground of demurrer is that an action against the attorneys in fact was a condition precedent to a right of action against the underwriters. The provision of the policy, be it observed, is, not that no action shall be brought against the defendant as underwriter until performance by the plaintiff of some condition precedent,— the case to which President, etc., Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250, and similar adjudications, are applicable,—but that in no event shall the defendant be sued for enforcement of his obligation. True, the defendant agrees to abide by the result of the action against the attorneys in fact as fixing his individual responsibility; but .of what avail is such a stipulation? He is not the judgment debtor, and of course an execution cannot go against him upon the judgment against the attorneys; and, as no action may be brought against him, his agreement to abide the event of, the suit against the attorneys is without legal sanction, and dependent for performance on his own pleasure. A stipulation against enforcement of an obligation by judicial process is, in effect, an exemption from liability on ■ the obligation; and upon principle, as well as by the adjudged cases, such a stipulation is void, and no answer to an action on the obligation. 1 Add. Cont. (3d Am. ed.) § 225; Jenlc. Cent. p. 96, pi. 86; Furnivall v. Coombes, 6 Scott, N. R. 422; Williams v. Hathaway, 6 Ch. Div. 544.

It is urged, however, that provision for enforcing the obligation is supplied by the suit against the attorneys in fact. But these attorneys, as such, are not parties or privies to defendant’s promise. And how can action be maintained against a stranger to the contract? The attorneys neither made nor broke the promise, and for breach of contract on the delinquent promisor is responsible. Dicey, Parties (2d Am. ed.) 223. The case is not of a contract with an agent for an undisclosed principal (Meeker v. Claghorn, 44 N. Y. 349), but of a promise by the principal himself. Plainly, therefore, the provision for an action against the attorneys in fact is nugatory, as an expedient for fulfillment of the defendant’s obligation, and the plaintiff is still free to enforce his right by action against the defendant.

Again, a provision in a contract that a party breaking it shall not be answerable in an action is a stipulation for ousting the courts of jurisdiction, and, as such, is void, upon grounds of public policy. Stephenson v. Insurance Co., 54 Me. 70; Insurance Co. v. Morse, 20 Wall. 445, 451; Telegraph Co. v. Dickinson, 13 Am. Rep. 298, note; Little v. Insurance Co., 25 id. 104, note; Shipping Co. v. Lehman, 39 Fed. Rep. 704; Nute v. Insurance Co., 6 Gray, 174; Scott v. Avery. 5 H. L. Cas. 811, 847 ; Sanford v. Com. T. Mut. Ac. Association, 86 Hun, 380, 383; 67 St. Rep. 225; Id., 147 N. Y. 326; 69 St. Rep. 689; 1 Add. Cont. (3d Am. ed.) § 258.

The defendant is not supported in his" position by section 449 of the Code, which allows the trustee to sue, but does not suffer him to be sued; nor by section 1919, because it is not apparent that there is any such association or liability as the statute contemplated. McCabe v. Goodfellow, 133 N. Y. 89 ; 44 St. Rep. 253; Georgeson v. Caffrey, 24 N. Y. Supp. 971. Who shall be defendant in an action the law prescribes, and it is not competent to parties, by private convention, to supersede the legal provision. Sanford v. Association, 86 Hun, 380, 383; 67 St. Rep. 225; Evans v. Hooper, 1 Q. B. Div. 45; Gray v. Pearson, L. R. 5 C. P. 568; Hybart v. Parker, 4 C. B. (N. S.) 209.

Judgment and order affirmed, with leave to answer on payment of costs. All concur.


text:
    Sarah Emily Smith, as Administratrix, etc., Pl’ff, v. Metropolitan Street Railway Company, Def't.

      (New York Common Pleas, General Term,

      Filed December, 1895.)

    1. Death by wrongful act—Accruing from cause of action.
    In an action for death by wrongful act, the cause of action accrues at the date of death and not at the date of injury. /

    2. Same.
    Where the death, occurs after the constitution of 1895 has removed the limitation of the amount recoverable, an action to recover damages therefor is within the constitutional provision, though the injury was sustained before it went into effect.
    Motion to reduce the damages alleged in the complaint.
   Pryor, J.

(orally).—The action is by an administratrix for the negligent killing of her intestate. It appears that the injury was sustained by the intestate on the 30th December, 1894, and that his death occurred on the 2d January, 1895. The -question is whether the recovery be limited to $5,000, as by the law m force on the 80th December, or be unlimited, by virtue of the constitution ■of 1895. That constitution went into effect the 1st January, 1895. The law limiting the recovery does not apply, because the cause of action did not accrue while that law was in operation. The cause of action is not the injury, but the death of' the intestate; and that death occurred after the new constitution went into effect. Had there been no death, there could have been no such action. The injury might have been 'the foundation of an action by the injured party, had he lived. These causes of action not only inhere in different parties, but proceed upon different grounds,— one for a wrongful injury, the other for a wrongful killing. The latter is not a survival of the former on the death of injured person, but is another and independent action, founded upon an event subsequent to the injury, and prosecuted by another plaintiff for the violation of a right appertaining to him, and not to the intestate. The death of the intestate being the ground of action, and occurring after the old law was abrogated by the new constitution, there is no limit to the amount of recovery.

It results that the motipn must be denied.


text:
    Henry H. Heert et al., Resp’ts, v. Stephen V. R. Cruger, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Equity—Reformation—Mistakes.
    A mistake in the execution of an instrument as to its legal effect, induced by the act of a party, whether fraudulent or innocent, entitles the other to its reformation conforming it to its intended meaning and operation.
    3. Same—Denial.
    If upon the true construction of an instrument its meaning and effect be as they are proposed to be made by amendment, no occasion exists for its reformation.
    3. Judgment—Judicial error.
    A judicial error or mistake in a final judgment can be corrected only upon a rehearing or appeal; not by motion.
    4. Costs—Extra allowance.
    In an action for reformation simply, there can be no additional allowance.
    Appeal from a judgment in favor of plaintiffs.

      Wm. Bard McVichar, for app’lt; John A. Straley, for resp’ts.
   Pryor, J.

Proposing a lease for ten years, the landlord demanded security for the entire term. The intended lessee replied that, if the security for that period were insisted upon, the negotiation might as well be abandoned.u Eventually tit was agreed between the parties “that the lessee might furnish sureties for two years only. Upon this condition the plaintiffs consented orally to become sureties for payment of the rent and performance of the covenants of the lease. Invited to execute the security agreeinent, plaintiffs objected that it did not contain the two-years limitation; to which the lessor answered that insertion of the limitation was unnecessary, that it was in the lease, and that the plaintiffs were security for two years. Thereupon the plaintiffs executed this paper:

“ In the consideration of the letting of the premises within described, and for the sum of one dollar, the receipt whereof is hereby acknowledged, we do hereby become security fpr the punctual payment of the rent, and performance of the covenants in the within agreement mentioned, to be paid" and performed by Frederick Ooolc, and, if default shall be made therein, we hereby promise and agree to pay unto Stephen Y. R. Oruger, trustee, as landlord, such sum, or .sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of said agreement, without requiring any notice of nonpayment, or proof of demand being made. Given' under our hands and seals the 22nd day of August, 1891: Hejstry H. Heert & Go. [Seal]

“ Witness: Edward D. McGreal.”

The lease contained this provision :

“ (11) And the said tenant doth hereby covenant and agree that he will provide security with one good and sufficient surety, who ■shall be able to justify in at least the sum of $30,000 in the usual form of security for the performance by the tenant of the covenants of a lease, for the performance by the said tenant of all the covenants herein contained, which said security shall be for a period of at least two years at a time; the said tenant hereby covenanting and agreeing to renew the same at or before the expiration of each period fpr the space of which the said security may be limited to run. And it is mutually covenanted and agreed that these presents are upon condition that the said security be provided by the said tenant as aforesaid, and that in case, at the expiration of any of the periods for the space of which the said ■security may be limited to run as aforesaid, the said tenant shall fail to provide further security as aforesaid, then, and in that event, the said landlord may, at his option, resume possession of the premises as hereinbefore provided in paragraph 8th.

“ In witness whereof the parties to this agreement have hereunto interchangeably set their hands and seals this 22nd day of August, 1891.

“ Frederick Cook. [Seal.]

“S. Y. E. Oruger. [Seal.]

“ Sealed and delivered in the presence of Edward D. McGreal.”

It is conceded that for the first two years of the lease the rent was paid in part by plaintiffs, the sureties. The defendant lessor claiming to hold plaintiffs for rent accruing after the lapse of those two years, and for breach of covenants subsequent to that period, the action is brought for reformation of the security agreement. The relief prayed is a reformation of the agreement so that it shall bind the surety for a period of two years only] instead of, as now read, for the full term of ten years. The complaint alleges that it was the intention of plaintiffs and defendant to limit the said security—on the lease—to two years Only ; and that the defendant, with knowledge of such intention, represented that it was unnecessary to provide for the two-years limitation in the agreement, since the lease contained such provision. Upon consideration of the lease and agreement in connection, the learned trial judge concluded that the plaintiffs are bound only for two years. If this be so, then judgment for the defendant is the inevitable legal corollary; for if, by a just construction of the instrument, its true meaning is already such as is sought to be imparted by the proposed reformation, no occasion exists for the interposition ’of equity. Oukville Co. v. Double-Pointed Tack Co., 105 N. Y. 658; 7 St. Rep. 528.

The security agreement,"however is silent as to the extent of the plaintiffs’liability; and even when read in conjunction with the lease, if permissible -its import is still so doubtful and obscure that its reconstruction is proper, provided the necessary conditions of the relief be apparent upon the proofs.

The security agreement we repeat, does not limit the plaintiffs’ responsibility to a period of two years; and yet that so to confine it was the mutual intention of the parties is clear upon the evidence. nevertheless, the plaintiffs executed the agreement with knowledge of its terms, and of the fact that they fail to express the common purpose. Without more, such execution of the instrument would oppose an insuperable bar to its reformation. Moran v. McLarty, 75 N. Y. 25. The proof, however is and convincing that the plaintiffs would not have executed it in its incomplete condition but for the assurance of the defendant that the insertion of the agreed term of limitation was unnecessary, and that already, by force of the provision in the lease, the plaintiffs were bound only for a period of two years. The mistake of the plaintiffs, then was as to the legal effect of the instrument, but this mistake of law suffices for its reformation, because induced by the act of the adverse party. Haviland v. Willets, 141 N. Y. 35 ; 56 St. Rep. 562; Weed v. Weed, 94 N. Y. 243, 247. Supposing merely a mutual mistake as the legal effect of the instrument, its execution, induced by the positive assurance of the defendant, entitled the plaintiffs to the relief of reformation. Maher v. Insurance Co., 67 N. Y. 283; Pom. Eq. Jur. § 847.

The defendant argues that even when corrected by insertion of the stipulated limitation,- the agreement, in effect, still binds plaintiffs for .the ten years rent. Assuming the relevancy of the point to the question of reformation, the contention is untenable. The obvious and indisputable intention of the parties was that the plaintiffs should be bound only two years, whether for payment of rent or performance of other covenant; and they are not responsible for the lessee’s failure, on the expiration of their liability to furnish other security.

But one of the defendant’s exceptions to evidence is of sufficient plausibility to justify comment; and that is to the proof of the conversation between the lessee and his surety.

Defendant had agreed to accept security for two years, and had authorized the lessee to procure it. Of course, on applying to a contemplated surety, it was necessary to inform him of the terms of the lease; and such is the sum and substance of the criticised colloquy. The testimony was neither offered nor admitted as evidence of the agreement between the defendant and the surety, of which indeed, the proof is otherwise abundant and unexceptionable. Tenney v. Berger, 93 N. Y. 524, 531.

Our conclusion is for affirmance of the judgment, but with a modification. The agreement executed by plaintiffs was as security for payment of the rent and performance of the covenants of the lease, and the obvious inference from the evidence is that such was the intention of the parties. Indeed, the plaintiffs have never challenged the guaranty of covenants, either before executing the agreement or in their prayer for judgment. The alteration of the instrument, therefore, by expunging the guaranty of covenants, was unauthorized, and the clause stricken out must be reinstated. Nevertheless, the court ruled rightly in refusing the redress upon motion. In his decision the learned trial judge adjudged the plaintiffs to be entited to a reformation omitting the guaranty of performance of covenants, — manifestly a j udicial determination of a substantial right.

A modification of a judgment at special term may be made only to correct clerical errors or mistakes, or to conform the record to the decision. Bohlen v. Met. E. Railway Co., 121 N. Y. 546, 550; 31 St. Rep. 888; Simmons v. Craig, 137 N. Y. 550; 50 St. Rep. 212. A judicial mistake or error is.remediable only by a rehearing or appeal from the judgment. McLean v. Stewart, 14 Hun, 472; Rockwell v. Carpenter, 25 id. 529. Here the appeal is from each and every part of the j udgmént, and as the court erred in its decision the error is before us for correction, The judgment must be modified so as to read :

c, “We do hereby become surety for the punctual payment of the rent, and performance of the covenants in the within agreement mentioned to be paid and performed by Frederick Cook, for a period of two years from the beginning of the term of said lease, to wit, the first day of January, 1892,” etc., and as so modified, the judgment is affirmed.

The order for an additional allowance is untenable (Christopher & T. St. R. Co. v. Twenty-Third St. Ry. Co., 48 St. Rep. 805 ; Conaughty v. Bank, 92 N. Y. 401), and must be reversed.

The order denying the motion for resettlement of the decision and judgment must be affirmed.

No costs to either party.


text:
    Charles Kummer, Resp’t, v. Christopher and Tenth Street Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Hew trial—Incredible testimony.
    After three successive verdicts for the plaintiff, in a case turning only on issues of fact, the court will not set aside the last verdict, because, in its opinion, supported by incredible testimony.

      • Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Merrill & Rogers, for app’lt; Hubert T. Kelcham, for resp’t.
   Pryor, J.

It is settled by countless adjudications, in England and this country, that, if a verdict be contrary to law or to the manifest justice of the case, the court will set it aside as often as the jury may return it. Here, whether the verdict be against law or justice depends upon the facts found by the jury; and if the testimony for the plaintiff . be true, their verdict can be contrary neither to the law nor to the justice of the ease, for the proof establishes the right of the plaintiff to a recovery beyond the possibility of doubt. Our conclusion as to the injustice of the former verdict was founded expressly upon our persuasion that the case was a fabrication. The question, then, is exclusively as to the credibility of the witnesses for the plaintiff; and we are tb decide whether, after three concurring verdicts in his favor, we shall set aside the last, because, .in our opinion, supported by evidence unworthy of belief. Hpon a review of the evidence on which the second verdict proceeded, we concluded that it was discredited by inherent improbabilities and contradictions, and for that reason we directed its submission to another jury. In so submitting it on the trial under review, the learned presiding judge pointedly and emphatically admonished the jury of its infirmities'; and yet they have again rendered a verdict for the plaintiff. Thus, three successive juries have avowed their conviction of the veracity of the witnesses for the plaintiff, however' repugnant to probability their story may appear to us. Obviously, unless we are to usurp the prerogative of .the jury, in their peculiar function, to determine the credibility of witnesses, we must give effect to the present verdict. Nelson v. Easton & A. R. R. Co., 7 Misc. Rep. 656; 58 St. Rep. 384. Such is the immemorial practice in case of repeated o verdicts for the same party upon the same proofs, even where the court still considers the verdict as contrary to the weight of evidence,—namely, to yield its opinion to the reiterated conviction óf the jury. Clerk v. Udall, 2 Salk. 649; Chambers v. Robinson, 1 Strange, 692; Swinnerton v. Marquis of Stafford, 3 Taunt. 232; Fowler v. Insurance Co., 7 Wend. 270, 275; Nichols v. Tuttle, 35 St. Rep. 851; Yeandle v. Yeandle, 40 id. 791. The point that the court erred in the submission of the case to the jury is manifestly untenable. Bagley v. Bowe, 105 N. Y. 171, 179 ; 6 St. Rep. 842; Colt v. Railroad Co., 49 N. Y. 671; Ambler v. Whipple, (Ill. Sup.), 28 N. E. 841.

Judgment and order affirmed, with costs.

All concur.


text:
    Patrick Raftery, Resp’t, v. Central Park, North and East River Railroad Company, App'lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Master and servant—Instruction.
    The master is guilty of negligence in requiring a servant to work in aplace of danger, whereby he sustains injuries which the master’s exercise of ordinary care would have avoided, without properly warning him of the danger.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry A. Robinson, for app’it; Charles M. Demond, for resp’t.
   Bischoff, J.

From a persusal of the record in this case, it is difficult to appreciate any reason for the appeal. No point of law is presented; the charge to the jury was received without comment, and this justly; and all questions touching rulings upon evidence have apparently been abandoned by the appellant. But, as a tribunal of fact as well as of law, we are asked to reverse the judgment as standing ,against the weight of evidence; yet in this aspect of the case the appeal certainly cannot prevail. The plaintiff, a servant, seeks to charge his master with negligence in having required him to work in a place of danger, whereby he sustained injuries which the master’s exercise of ordinary care would have avoided,—necessarily, also, maintaining the fact of his own proper care in the matter,—and he has sustained his position by efficient proof before the jury. This proof showed that he was directed by a foreman in defendant’s employ to enter a shaft of, to him, unknown construction, the flooring of which was formed in part of glass frames and in part of wood, the whole covered by dust and dirt so as to present a common surface to the view; that, uninformed as to the nature of the place, he sought, in pursuance of instructions, to reach a tool lying upon, the glass portion of the floor, and, this giving way under his weight, the injuries in suit resulted. Such was his account of the accident, in which he was believed by the jury, as against witnesses to whose credibility it was for that body to judge; and we fail to find anything in "the case, as presented to us, which could justify our holding the preponderance of evidence or the probabilities to be contrary to these facts as given. No question is raised as to the defendant’s responsibility for the act of its employe, the foreman, in bringing about the injury; and, if notice to it of the condition of the locality was requisite, this was furnished by the fact that the obscuringdayer of dirt upon the flooring could not well have been of sudden arising, but, inferentially, came from a deposit during a period of existence sufficient to charge the defendant with knowledge. Van Tassell v. N. Y., L. E. & W. R. R. Co., 1 Misc. Rep. 299, 304; 48 St. Rep. 767. Thus negligbhce is found in the failure to properly warn the plaintiff of his danger, and that there was such a failure the jury have found.. The damages awarded do not appear to be excessive, and the verdict, in this regard, is not questioned by the appellant.

Judgment and order affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    George W. Everitt, Resp’t, v. New York Engraving and Printing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Statute of .frauds—Not to be performed in a tear.
    A verbal contract for commissions payable monthly on all the work which plaintiff shall procure for defendant from a certain establishment is not within the statute of frauds.
    2. Evidence—Conclusion.
    In an action for commissions on work procured for defendant the question whether any orders were sent by reason of any influence by plaintiff, calls for a conclusion.
    Appeal from a judgment in favor of plaintiff, rendered by the ' justice without a jury.

      Wilson & Bennett, for app'lt; William Hildreth Field & Deshon (Charles A. Deshon, of counsel), for resp’t.
   Giegerich, J.

This action was brought to recover the sum of $157.21, claimed by the plaintiff as commissions for 'securing orders for work for the defendant. The plaintiff’s contention is that he was to receive ten per cent, monthly on all the work that came to the defendant out of Harper Bros.’ establishment. Defendant claims that he was to receive the commission only so long as he actively influenced the awarding of the work to it. , The undisputed facts are that plaintiff had been employed by Harper Bros, in their engraving department for nine years, and knew their requirements, which differed from those of some other establishments. Hpon leaving their employment, he was engaged-by the defendant, which had long been attempting to get work from the Harpers, but up to that time had Succeeded in getting only one or .two hundred dollars worth per month of coarse line engraving work; its reputation for half-tone work, as alleged, being bad. The plaintiff agreed with it to undertake to secure more orders from the Harpers, and for a considerable period spent most of his time either in the one establishment or in the other. He induced those of Harpers’ employes who- had the placing of orders to.give the defendant work on trial, and then followed the -progress of. that work through defendant’s establishment, making suggestions, ■particularly with a view-to adapting the plates to Harpers’ needs; and then again, in the latter’s establishment, ‘‘ watched how the plates went through, how the impressions looked,” etc. The quality of the work steadily and .rapidly improved after the plaintiff’s employment, so that from being unsatisfactory it became excellent. The quantity of work secured also gradually increased, until in the month of March, 1895, the month sued for, it amounted, tombout $1,600 worthy the plaintiff’s commissions increasing meanwhile from a few dollars per month for the first months to nearly $160, the amount now sued for. The defendant informed plaintiff in March, 1895, that the Harpers would not give it any more orders if it paid any more commissions. It is significant that the price paid was then decreased from thirty to ■twenty-seven cents per square inch, the exact amount of plaintiff’s former commissions. The facts have been recited at such length because they serve to throw light upon the construction of the language conceded to have been used in the agreement of the parties. The defendant’s secretary, Mr. Cooper, testified, “ I told .him I would give him ten per cent, on all Harpers’ work.” His understanding" of this seemed to be that this commission was in consideration of the plaintiff’s peculiar influence, something in the nature of favor, with Harpers’ people. The plaintiff’s understanding seemed, on the other hand, to be that he was to do something of a more substantial character, namely, to adapt the work •done to Harpers’ needs. To be sure, he had influence in the sense of having, as an old employe, access to those of .Harpers’ people who controlled the placing of orders, and their confidence in a measure and to the extent of being .able to secure a trial; but ultimate and permanent success depended upon his being able to bring it about that the defendant could turn out plates acceptable to the Harpers. The plaintiff also swore that Mr. Cooper told him that when once,the work was well started “he could go to California, if he pleased, and would receive his check regularly,” and I do not find that this testimony was contradicted. The practical construction that the parties placed upon this agreement, by including the value of the kind of work the defendant had been doing for the Harpers before the plaintiff entered upon this contract in the sum upon which he was paid commissions, has some bearing upon the question whether plaintiff was to be paid upon any orders other than those directly secured by his influence with Harpers’ people.

The defendant’s claim that the contract is. void under the statute of frauds, because not to be performed "within a year, is not good. The contract was for an indefinite period, which would be terminated at any time by the failure of Harpers to award further orders to the defendant. “If the agreement may, consistently with its terms, be entirely performed within the year, although it may not be probable or expected that it will be performed within that time, it is not within the condemnation of the statute.” Kent v. Kent, 62 N. Y. 560, 564. See also Warren Chemical and Manufacturing Co. v. Holbrook, 118 id. 586, 598; 29 St. Rep. 848.

. Neither do I think that there was error in excluding the questions asked Mr. Smithwick, the man who had final authority in placing contracts for the Harpers, whether any orders were sent ' tltrough him by reason of any influence of the plaintiff. The objection was that a conclusion was.called for. The question was then asked whether plaintiff had anything to do with witness’ sending orders to-the defendant. I think the objection was good, •because the question was not limited to the point of any direct personal influence by the plaintiff upon witness. Only to that extent would his answer have been testimony to a fact.

The judgment should therefore be affirmed, with costs.


text:
    Frederick Ackers, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Municipal corporations—Defective streets.
    It is incumbent upon a municipal corporation to maintain the streets in a condition of reasonable safety for the driving of spirited as well as docile animals.
    2. Same.
    The fact that the restive movement of the horse brought about the injury, which would not have resulted had he remained quiet, is no defense.
    3. Same—Notice of defect.
    Where the work in the street is the work of the municipality, notice of the dangerous character of the excavation is necessarily attributable to it.
    4. Negligence—Contributory.
    It is no defense, in an action for a negligent injury, that the negligence of a third person contributed to cause the injury of the plaintiff if the negligence of the defendant was an efficient cause.
    5. Same.
    Where the negligence of a third party and of the defendant are contributory causes leading to a position of sudden danger to.the plaintiff, the latter’s ill-advised action under the spur of necessity does not amount to negligence on his part sufficient to defeat a recovery.
    6. Evidence—Value.
    Evidence of the price paid for property is admissible, as bearing on the-question of its value.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Theodore Connoly and Terrence Farley, for app’lt; James P. Nie--' mann, for resp’t
   Bischoff, J.

This action was brought to charge the defendancorporation with a negligent act in so maintaining an excavation in the public street as to have caused an injury to the plaintiff-’s. property, the negligence being predicated upon the absence of proper guards or barricades about the locality. The facts appear to be that late in the afternoon of September 15, 1892, the plaintiff was driving his horse along Mott avenue^ in this city, proceeding in a southerly direction, and approaching 161st street. -The excavation in question was located in the latter street, but extended 'into the point of intersection with Mott avenue, leaving a space-sufficient for the passage of but one vehicle through the avenue at that place. As the plaintiff reach this narrow point, another carriage approached rapidly from the south, and, being • suddenly confronted with the prospect of a collision, he turned his horse-upon the earth embankment thrown up about the excavation, which was not otherwise guarded. The horse became restive by reason of the shifting of the loose earth under his feet, and gave a spring, which caused his precipitation into the excavation, and the injuries sued for resulted. The plaintiff was aware of the presence of an excavation somewhere upon the opposite side of the embankment, as he approached it, but, according to his testimony, he did not appreciate its proximity.

Error is assigned by the appellant to the ruling of the court submitting the question of negligence to the jury, it being claimed that there was a sufficient barrier about the excavation in the form of the embankment; but we think that the contention is without force. While the restive movement of the horse perhaps brought about the injury, which would not have resulted had he remained quiet, yet this was no defense, since it was incumbent upon the defendant to maintain the highway in a condition of reasonable safety for the driving of spirited as well as docile animals (Hey v. Philadelphia, 22 Am. Rep. 733; Kennedy v. Mayor, etc., 73 N. Y. 365), and the jury could reasonably find that the defendant was remiss, considering the nature of the locality, in failing to place railings around the embankment for the purpose, at least, of warning travelers that the road as restricted by that limit alone was safe. Had such barriers been maintained, there might, indeed, have been a collision, as anticipated by the plaintiff, but this action would not have been brought. Had the plaintiff driven through the barriers, a very different state of facts would also have been presented, but we find nothing unreasonablein the proposition that ordinary care would have called for something more than the mere erection of a mound of earth, at the point in question upon the defendant’s part.

It is claimed, further, that there was a failure of proof of notice to the defendant of the dangerous character of this excavation in the manner maintained, but, in view of the fact as shown, and not contested, that the woiie in the street was the work of the municipality, such notice was necessarily attributable to it, if, indeed, the doctrine of notice were at all applicable to a case like the present, where the city has failed to properly guard a locality made inherently dangerous through its act. Wilson v. City of Troy, 135 N. Y. 102; 48 St. Rep. 364. IN or can it be said that there was contributory negligence attributable to the plaintiff as matter of law. His action in-turning his horse upon this unfenced mound of earth was induced through an attempt to avoid a sudden danger, and he was not necessarily to be denied relief upon that ground. It is no defense in an action for a negligent injury that the negligence of a third person contributed to cause the injury of the plaintiff, if the negligence of the defendant was an efficient cause, Atkinson v. Transportation Co., (Wis.) 18 N. W. 764; Eaton v. Railroad Co., 87 Am. Dec. 730; Austin v. Steamboat Co., 43 N. Y. 75; and where the negligence of a third party and of the defendant are contributory causes leading to a position of sudden danger to the plaintiff, the latter’s ill-advised action under the spur of necessity does not amount to negligence upon his part sufficient to defeat a recovery. Dyer v. Railway Co., 71 N. Y. 228.

The only remaining point in the case has regard to the ad missibility of evidence of the price paid for the property injured, as bearing upon the proof of damage. The question was presented only by exceptions taken to the admission of the testimony, which, as the court observed was “some evidence of value.” In stating this proposition the learned trial judge was undoubtedly correct, Hawver v. Bell, 141 N. Y. 143 ; 56 St. Rep. 674, and, if counsel had considered the full proof as to damage tó have been insufficient, a nonsuit upon that ground should have been moved, or an appropriate instruction to the jury asked (case last cited). There is no trace of any such attitude having been assumed at the trial, and the point, if at any time of availability in this ■ case, is now raised "too late.

The judgment and order must be affirmed, with costs.

All concur.


text:
    James Kettle, App’lt, v. John Turl et al., Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Appeal—Resettlement oe case.
    After argument and decision of an appeal, it is too late for the defeated party to apply for a resettlement of the case.'
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      George H. Hart (John H. Whiting, of counsel), for pl’ff; Niles & Johnson (William W. Niles, of counsel), for def’ts.
   Per Curiam.

Motion for resettlement of case. After argument and decision of an appeal it is too late for the defeated party to apply for a resettlement of the case in order to obtain a different statement of facts upon the record by the insertion of questions and answers which he deemed immaterial in making up his case, and which for the first time appear material to him after an adverse decision. It might be different if the proposed amendment were in support of a judgment, and where matter was improperly inserted or omitted by the other party to the controversy.

Motion denied, with $10 costs.


author: Daly, 0. J.

text:
    Mary L. Gilbertson, Resp’t, v. Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Trial—Instructions.
    It is error to state in a charge the conclusion to he drawn from testimony.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Charles Strauss, for npp’lt; Samuel B. Randall, for resp’t.
   Daly, 0. J.

The plaintiff claimed-to have sustained severe injuries, among them a fracture of the left hip, from a fall occasioned, as alleged, by the starting of the car from which she was alighting, after it had been first stopped at her request. Two physicians were called on her behalf to testify to the injuries from which they found her suffering. One of them, Dr. Good, found a shortening and eversion (turning outwards) of her leg, andeame to the conclusion that she had an impacted fracture of the neck of "the thigh bone; that is, that the neck of the bone had been driven into the head. Two physicians were called by defendant, who gave it as their opinion that the fracture was not caused by the fall. In charging the jury the learned trial judge said:

“But it is denied by the defendant that this fracture was the •effect of the fall. You have heard two medical men on the stand as witnesses, who swore that in their opinion that fracture, which is the main hurt which she complains of, could not possibly have been caused by this fall. You have heard the opinion of the gentleman who attended her, Dr. Good,- that it was; that that fall was the cause of-that fracture. In coming to your opinion upon that subject, ask yourselves, is there any évidence in the case of any other cause of that fracture ? If there be any evidence of any other cause of that fracture, then you will say which of these was the cause.”

At the close of the charge the defendant’s counsel took several exceptions, among them the following:

“ I except further to your statement of the statement, or its effect, of Dr. Good, to the fact that the injury to the thigh bone was the result of the fall.”-

An examination of the testimony of Dr. Good does not disclose that he gave any opinion as to'-'the cause of the fracture. He was examined and cross-examined at length, and recalled to the stand for further questions, and the jury may have taken the statement in the charge as the legal conclusion from his whole testimony. •This undoubtedly affected their verdict, and, the error having been pointed out by a timely exception, the judgment will have to be reversed, and a new trial ordered. This conclusion is reached without hesitation, because there are good grounds for holding that the verdict of $10,000 recovered by the plaintiff is excessive. The plaintiff, a lady of sixty years, capable of earning three or four dollars a week, and afflicted with injuries which may be permanent, was undoubtedly entitled to suostautial damages for the injury she. sustained. But the jury were evidently influenced by the suggestion of insurance by the defendant against liability for the negligence of its employes, and the verdict represents, not their estimate of a just compensation to the plaintiff, but their prejudice, against such forms of insurance. In view of the action of the 'courts with regard to excessive verdicts, we would, in any event, have been 1 required, I think, to reduce this one.

J udgment reversed, new trial ordered, with costs to abide the event.

All concur.


author: Bookstaver, J.

text:
    Edith Vowell, Resp’t, v. Twenty-Third Street Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)
    1. Former adjudication—Dismissal on merits.
    Where, in an action to recover damages for injuries resulting from defendant’s negligence, the complaint is dismissed, upon the trial, on the ground that the plaintiff has executed a release to one who was a tort feasor, thereby discharging the defendant from any liability, the judgment is upon the merits.
    2. Same.
    A judgment of dismissal on the merits of the casé bars a new action.
    Appeal from orders, deny ing.defendant’s motion to amend the clerk’s minutes by inserting after the word “ dismissed,” the words “on the merits,” and granting plaintiff’s motion to vacate the judgment.

      John T. Little, Jr., for app’lt; Alfred G. Cowan, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for injuries received by reason of the negligence of the defendant in the management of a car, whereby the plaintiff, while in the act of alighting, was run over and injured by a laundry wagon owned by one Henry Wilcke. The answer, after denying the allegations of negligence, set up, as a separate defense, that, prior to the commencement of this action, the plaintiff, by an instrument in writing under seal, for a valuable consideration, released and discharged the said Henry Wilcke from all and every claim and demand for the injuries so received, and that thereby the defendant was released and discharged from any liability for the injuries set out in the complaint. The complaint was dismissed, upon the trial, on the ground that the plaintiff had executed a release to a joint tortfeasor, thereby discharging the defendant from any liability. 1 This was a judgment upon the merits. The release was pleaded and proved, and was a complete bar to the action.

Section 1209 of the Code of Civil Procedure provides that:

“A final judgment, dismissing the complaint, either before or after a trial,' * * * does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.”

Prior to the amendment of this section,, in 1877, it was held that a judgment dismissing a complaint was not a'bar to another action for the same 'cause (Wheeler v. Ruckman, 51 N. Y. 391), and the amendment was enacted with a view to changing this in a case where the merits were necessarily involved in the dismissal under the section as it now stands. .Where the record shows the judgment was upon the merits, it is a bar. O’Rourke v. Hadcock, 114 N. Y. 541, 551, 555; 24 St. Rep. 511. It appears from the record in this case that the complaint was dismissed “ on the ground of the release.” This release barred the action, and the decision was therefore upon the merits. A new action and a new trial in such a case must have the same result. The cases cited by the plaintiff were either decided before the amendment of section 1209, or are cases where the dismissal was not upon the merits, and are therefore not in point.

It follows that the court should have allowed the amendment to the clerk’s minutes asked for, and that the order vacating the judgment was erroneous. Both orders should be reversed, with costs and disbursements, and the defendant have leave to renew his motion to correct the clerk’s minutes nunc pro tune.

All concur.