author: BARRETT, J.

text:
    John Kennedy et al. v. Joseph F. McKone et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Contracts—Interpretation.
    The effect of a contract to do specified work for “ about §1,200, but not to exceed $1,500,” is that the contractor shall receive the reasonable value of the work done, not exceeding §1,500, and it is immaterial that the contractor afterwards gave an order for money to become due under the contract, referring to the contract price as $1,200, since such reference was merely intended to identify the contract.
    2. Same—Substitution of contractors.
    The substitution of plaintiffs in place of the contractor who had undertaken work for defendant is not affected by an order on defendant, given by the original contractor to plaintiffs, who, at the contractor’s instance, undertook to complete the work, where the order requested •defendant to pay plaintiffs “the amount of their bill for labor and materials that they are furnishing for the job * ® * that I am doing for you, * * * not to exceed the amount of my contract price of §1,200.
    3. Same—Completion of building contract by owner.
    The mere fact that the owner'of a building, on default of the contractor, paid a certain sum for the completion of the building, does not prove that such a sum was the value of the uncompleted work which the owner was entitled to deduct from the contract price.
    4. Mechanics’ liens—Foreclosure—Offer of judgment.
    Laws 1885, c. 342 (Mechanic’s Lien Law), though containing complete provisions for enforcing liens, one of which is (section 19) that defendant may pay a given sum into court in discharge of the lien, is not exclusive of the provisions of the Code of Civil Procedure relating to offers of judgment, as section 8 of the mechanic’s lien law expressly retains the ordinary procedure in actions of foreclosure of mortgages.

      5. Same—Costs.
    An offer, in an action to foreclose a mechanic’s lien, to allow judgment fixing the lien at §1,000, without providing for a deficiency judgment in personam, is not necessarily more favorable than a judgment fixing the lien at §600, with a personal judgment for any deficiency.
    Appeal from the court of common pleas, special term.
    Action by John Kennedy and another against Joseph F. McKone and others to foreclose a mechanic’s hen. From so much of the judgment as confirmed the report of the referee, and awarded judgment in favor of defendant McKone against plaintiffs for $18.16, the excess of his costs over the amount of the claims established by plaintiffs, plaintiffs appeal; and from so much of the judgment as limited the amount of defendant Winter’s recovery from defendant McKone to $99.95, defendant Winter appeals.
    The action is brought by the plaintiffs to foreclose a mechanic’s lien upon the defendant JVIcKone’s leasehold interest, in the premises Ho. 91 William street in the city of New York.
    ' The complaint contains two causes of action. The first is for $1,537.76, the alleged fair and reasonable value of work done and materials furnished, at the request of said McKone, in making additions and alterations upon said premises. The second cause of action is for $276.75, the alleged value of work done and materials furnished by the defendant Robinson, at the request of McKone, the claim for which was assigned by Robinson to the plaintiffs. The answer of the defendant Mc-Kone alleges the making of a contract by him with the defendant Robinson to do the work on said building, the details of which are specified, for the sum of $1,500 ; that Robinson failed to complete his contract, and entered into an agreement with the plaintiffs to do said work for him as subcontractors; that the plaintiffs thereupon did certain work under said contract, and certain extra work, but failed to complete the work to be done under the contract; that, owing to this failure on. the part of Robinson and the plaintiffs, the defendant McKone was compelled “ .to pay out, on account of said contract,” the sum of $787.92; and that the balance due “ to the said defendant Robinson, or these plaintiffs,” is the sum of $685.13, “ which sum this defendant has always been ready and willing, and has offered to pay to these plaintiffs on account of their claim herein.” At the trial the defendant McKone was permitted to amend his answer by alleging that the contract price for which Robinson was to do the work was $1,200, instead of $1,500. The defendant Winter answered, setting up a claim for $133.31 against the defendant McKone, alleged the filing of a lien, and asked the usual judgment of foreclosure and sale. Prior to the trial the defendant McKone offered judgment “ establishing the amount of the plaintiffs’ lien ” at the sum of $1,000 and costs, and establishing that of the defendant Winter at the sum of $96 and costs. These offers were not accepted. There was much conflict in the evidence, but the following facts were found by the court to be established by a preponderance of evidence:
    Some time in July, 1894, the defendants McKone and Robinson entered into a contract whereby the latter agreed to do the mason work, carpenter work, iron work, tiling, plastering, and papier-maché work on the premises of the latter. While the amount was not fixed definitely, Robinson told McKone that it would be about $1,200, and would not exceed $1,500 at the utmost. Robinson commenced work, but about the middle of August his firm failed, and made an assignment, which destroyed his credit, and prevented him from completing the contract. Thereupon, at Robinson’s request, the plaintiffs took hold of the job. After working a short time, they in-

      .sisted upon some arrangement with McKone as to payment. An interview followed, at the office of Eustis, McKone’s attorney, at which the following paper, was executed and delivered to the plaintiffs.
    “ N. Y., Aug. 30th, 1894.
    “ Joseph F. McKone : Please pay to John Kennedy & Son the amount of their bill for labor and materials that they are furnishing for the job at 91 William street that I am doing for you when the work is completed, not to exceed the amount of my contract price of $1,200. ' Hugh Eobinson.
    “ Accepted, to be paid when the said contract is fully completed.
    “ J. F. McKone.”
    The plaintiffs continued work till the early part of October, when they left, leaving unfinished the tiling, plastering, and papier-maché work, which they claimed they were under no obligation to do. McKone thereupon had the unfinished work completed at a cost of $761.80. Eobinson remained after the plaintiffs left, and superintended the work until its completion.
    Upon these facts the referee found that Eobinson’s contract price was $1,200 ; that the plaintiffs were substituted as contractors in Eobinson’s place, and became entitled to said sum of $1,200, and obligated to do the whole of Eobinson’s work; that McKone was entitled to the sum of $761.80, the amount paid by him to complete the contract, as an offset to the contract price; and that the plaintiffs were entitled to recover the difference, $438.20, together with $166.67 for extra work; but, as the whole sum of $604.87 was less than the amount of McKone’s costs, the latter had judgment for the residue, to wit, $18.16. The referee found that the defendant Winter was entitled to recover the sum of $99.93, for which judgment was allowed him.
    Artemas B. Smith, for appellants Kennedy and another; Arthur L. Henthorn, for appellant Winter; John E. Eustis, for respondent McKone.
   BARRETT, J.

—1. While quite agreeing with the learned referee that a contract existed between McKone and Eobinson, and that that contract included the tiling, plastering, and papiermaché work, we cannot concur in the view that the contract price was $1,200. The undisputed evidence seems to establish the contrary. According to the defendant McKone’s own testimony, the only limit put upon the cost was that it should not exceed $1,500. ” The same thing is shown by the defendant’s Exhibit E. This was a card on which-Eobinson first wrote the details of the work which he was to do. At the fooi of it, in McKone’s handwriting, are the words, “ Will not run over $1,500.” And the latter admits that he placed these words there as a memorandum of what occurred at the interview with. Robinson. This evidence is absolutely undisputed, except by Robinson, who'claimed terms more favorable to himself,—a claim which the referee rightly disregarded. It is thus proved that Robinson agreed to do the Avork for a sum'not to exceed $1,500. The legal effect of such an agreement Avas that Robinson became entitled to recover the reasonable value of the work done with the limitation that such recovery could riot exceed $1,500. The case is not, as the plaintiffs claim, analogous to Carll v. Spofford, 45 N. Y. 61. There the plaintiff refused to put a limit on the cost of his work, but merely made a “ rough guess ” that it would not exceed a figure named. Here Robinson definitely fixed a sum which the cost should not exceed, and he cannot recover more than the sum so named. The contract, price Avas not affected by the recital, in the order of August 30, 1894, that it AAras but $1,200. The price Avas not fixed at the intervieAV Avhich occurred on that day, but at the pre\7ious intervieAV. between McKone and Robinson. The contract price Avas, as Ave have seen, to be about $1,200, but not to run over $1,500. The words, my contract price of $1,200,” Avere merely Avords of description; and they misdescribed the contract, or,, rather, failed to describe it fully and accurately. That is all. The only purpose of the order was to define the amount Avhich McKone should pay the plaintiffs, and the legal effect of it, so far as these plaintiffs are concerned, is precisely the same, in all respects, as if the Avords my contract price ” had been omitted.

2. We are also unable to agree with the learned referee that the plaintiffs became substituted as contractors in the place of Robinson. The order of August 30, 1894, does not effect any such substitution. There is only one possible construction to be put upon it, and that is that it gives the plaintiffs, as subcontractors under Robinson, the security of McKone’s responsibility up to the amount of $1,200. If the plaintiffs became chief contractors in Robinson’s stead, they Avould be entitled to receive Robinson’s compensation. But, even if we should assume, contrary to the fact, that Robinson’s compensation on August 30, 1894, Avas fixed at $1,200, it Avould still remain true that the plaintiffs Avere not absolutely entitled to this sum. They were to receive the amount of their bill,” which was “ not to exceed ” the sum of $1,200. The learned referee admits that, on its face, this is what the order means, but says that nevertheless, the evidence as a Avhole shows that such a substitution was effected. After a careful perusal of his opinion, and examination of the evidence, we are unable to see that he refers to, or that the record discloses, any fact or circumstance permitting such an inference. In fact, the testimony of McKone and his attorney, Eustis, sIioavs that the question .of the retention of Robinson or the substitution of the plaintiffs Avas directly discussed, and the former course deliberately chosen. This AA7as done, as they testify, both because McKone knew Kobinson, and wanted him to superintend the work, and because the latter believed that there was still a profit in the contract for him after paying the plaintiffs. McKone, from friendly motives, was desirous that Kobinson should make any such possible profit. The effect of this, however, is not what the referee and counsel for the plaintiffs have assumed, viz. that the plaintiffs were entitled to recover their full $1,200 from McKone in any event, leaving the latter to look to Kobinson if the work was not completed. McKone has completely protected himself from such a result by the condition, in the order, that the plaintiffs’ right to receive the amount of their bill from him (within the limit of $1,200) shall be dependent upon the completion of the work. McKone was not in the first place liable to the plaintiffs at all. Kobinson hired them, and they would have had to look to him throughout but for the order. There is no promise on McKone’s part, express or implied, to pay them anything, except as specified in the order. They must recover in accordance with its terms, or not at all. The condition made in this paper puts the plaintiffs, for the purposes of this action, in much the same position as if they had been chief contractors. They could not, like a chief contractor, be held by McKone to liability for breach of contract; but, when they took the initiative, and sought to recover their bill, it became incumbent upon them to show fulfillment of the contract, either by themselves or by Kobinson. If McKone had not elected (as his. answer shows he did) to finish the work as agent for the contractor, the plaintiffs would have lost all right to compensation. As McKone, however, elected to finish the work and charge up the cost, we think the referee did right in deducting the value of this uncompleted work, and awarding plaintiffs the balance. When a contractor fails to complete, and the owner does so for him, the former is debited with the amount of the latter’s necessary expense, on the theory that the owner is acting as the agent of the contractor, that such expense is incurred in order to entitle the contractor to the contract price, and that the contractor would have had to incur the same expense if he had done his duty. The plaintiffs stand in no better position here. They can recover under their order only what Kobinson could have recovered if he had proceeded with the work,—always, however, within the $1,200 limit. If McKone was justified, as he clearly was, in .doing the work which Kobinson’s contract called for, but which was not done, either by Kobinson or the plaintiffs, he can properly deduct the value of that work from the value of the work which was actually done; and the balance is the just meed of the plaintiffs’ recovery.

3. From the foregoing it results that the plaintiffs should not have been nonsuited on their second cause of action. McKone was liable to Kobinson in the sum of $1,500 if the work done was of that value. Kobinson assigned away his right to recover $1,200 of this amount, but remained entitled to the other $300 if sufficient work was done. The plaintiff’s assignment covers certain services rendered by Robinson and materials furnished by him. For each day of labor and pound of material Robinson was entitled to recover from McKone, with the limitation, originally, that the whole sum should not exceed $1,500; with the limitation, after the execution of the order, that such recovery should not exceed $300, if the plaintiffs earned their full $1,200. This difference between the amount of money earned by the plaintiffs and the full amount earned under the contract, Robinson remained entitled to recover after the order; and the plaintiffs, in so far as they have succeeded to Robinson’s rights, must have judgment for the amount so due.

4. We are unable to agree with the referee that the defendant McKone proved that he was entitled to deduct the sum of $761 .'80 as the value of the uncompleted work. It was simply proved that McKone paid out this amount. There is no evidence that the work done was of that value. The mere fact of payment, standing alone, is not sufficient evidence of value. Gurnb v. Railroad Co., 114 N. Y. 411, 414; 23 S. R. 748.

5. We also think that the learned referee erred in his disposition of the question of costs. The defendant McKone made an offer of judgment under section 738 of the Code of Civil Procedure. This offer was in these words :

“The defendant, Joseph F. McKone, hereby offers to allow judgment to be taken against him in this action establishing the amount of. the plaintiffs’ lien at the sum of one thousand dollars and costs.”

The offer was not accepted, and, as the plaintiffs failed to establish a lien to the amount of $1,000, the referee awarded costs to the defendant from and after the date of the offer. The appellant contends that the offer was unauthorized, for the reason that the mechanic’s lien act (Laws 1885, c. 342) provides a complete and comprehensive scheme upon the general subject, which excludes the section of the Code in question, and prevents offers of judgment thereunder. We do not agree with this view of the statute. It is true that the act contemplates a complete sj^stem for creating and enforcing mechanics’ liens, but it expressly retains the ordinary procedure in civil actions for the foreclosure of mortgages upon real property except as therein otherwise provided. Section 8. .This procedure embraces offers of judgment under section 738, and there is certainly nothing in the mechanic’s lien act which is inconsistent therewith, or which provides “ otherwise.” Section 19 of the mechanic’s lien act has no relation to offers of judgment. That section merely allows an offer to pay a given sum into court. Acce¡3tance of the offer entitled the lienor neither to the money nor to judgment. It simply permits the deposit, and thereupon substitutes the money for the land, discharging the lien upon the latter. This is an entirely different thing from an offer of judgment. Offers of judgment are permitted in equity cases, the same as in common-law actions. It follows that they are permitted in mechanic’s lien foreclosures. They are part of the procedure retained by section 8. An offer of judgment under the Code was therefore admissible. But this offer cannot avail the defendant, for the reason that he has not established, and in the nature of things cannot establish, that the plaintiffs have recovered a less favorable judgment than that offered. The offer here was in the same form as that which was considered and approved in Blister v. Stumm (Super. Buff.) 27 H. Y. Supp. 1000. So far as the plaintiffs ask a judgment in rem, we agree with the conclusion of the learned court in this case. Reasonably construed, the offer covered all the relief asked in the complaint on that head. Here, however’, the plaintiffs who asked and obtained a deficiency judgment in personam against McKone; and McKone offered' them no-such judgment. His offer says: “ You may have the property sold, and pay yourselves from the proceeds one thousand dollars.” But there he stops. The plaintiffs could not have entered or docketed a deficiency judgment in personam against McKone, without praying for it, and having it adjudged to them. The language of section 23 is explicit, that whenever, upon the sale, “ there is a deficiency of proceeds, judgment may be docketed for the deficiency against the persons named in the judgment as personally liable therefor, and therein adjudged to pay the same, in like manner and with like effect as in actions for the foreclosure of mortgages.” Here the plaintiffs prayed for this deficiency judgment, and the referee found that they were entitled to it. The offer did not embrace it. We cannot say that the judgment which the plaintiffs obtained was less favorable than that offered. A judgment establishing their lien to the amount of $600, with a deficiency judgment in personam, might be more favorable than a judgment establishing their lien at $1,000, but without a deficiency judgment. The statute does not authorize the docketing of the personal judgment as a legal sequiturfrom the deficiency. On the contrary it expressly leaves that question to the determination of the court. The court must, in its decree, adjudge the liability, and require the payment. It follows that the offer was insufficient to justify the award of costs to the defendant.

As to the Winter appeal, we are satisfied that the finding of the referee that the item of $10 for building the stairway was included in the contract between Robinson and Winter is amply sustained by the evidence. This item was thus properly disallowed as against the defendant McKone, and judgment has been given the appellant for the remainder of his claim.

The judgment, so far as appealed from by the plaintiff, should be reversed, and a new trial ordered, with costs to abide the event; so far as appealed from by the defendant Winter, it should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: McADAM, J.

license: Public Domain

text:
    Charles C. Smith as Exr. v. A. D. Farmer Type-Founding Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 25, 1896.)
    1. Trustees—Powers—Termination.
    The power of a trustee to sell real estate, and until sold to manage it, and collect rents, is terminated by a notice from the beneficiaries that they elect to take their respective interests in the property, instead of the proceeds. 40 N. Y. Supp. 356, affirmed.
    3. Same—Unpaid bequests.
    The right of beneficiaries, under a devise in trust, to take the prop-' erty, instead of its proceeds, is not affected by the fact that certain bequests had not been paid where they were not charged on the land, and their payment formed no part of the trust.
    3. Costs—Trustee plaintiff.
    Costs cannot be awarded against a trustee personally (Code Civ. Proc. § 3246), except on special motion after due notice.
    Appeal from city court of New York, general term.
    Action by Charles C. Smith, as executor and trustee of the will of Adaline L. Gregg, deceased, against the A. D. Farmer Type Founding Company, to recover rent. From an order of the city court (40 N. Y. Supp. 356) sustaining defendant’s exceptions and ordering judgment absolute for. defendant and against plaintiff personally for costs, plaintiff appeals.
    D. C. Briggs (A. Perry, of counsel), for appellant; Durin & Yates (B. Yates, of counsel), for respondent.
   McADAM, J.

—On January 29, 1887, an indenture of lease was executed by Adaline L. Gregg, then of the city of Brooklyn, to Aaron D. Farmer and others, composing the firm, of Farmer, Little & Co., of the premises known as Nos. 62 and 64 Gold street, in the city of New York, for the term of 10 years from May 1, 1887, at the yearly rent of $3,500, payable in equal monthly payments of $291.67 each, in advance. The lessees entered under the lease, and occupied the premises until about July 6, 1892, when they organized a corporation by the name of the A. D. Farmer Type-Founding Company, the defendant herein. The defendant succeeded the firm in business, and assumed the obligations and covenants of the lease, and has since occupied the demised premises under the lease. On February 17, 1892, the lessor died seised of said premises, leaving a will, by which the plaintiff was appointed the sole executor" and trustee of her estate. The will was duly admitted to probate on April 27, 1892, and letters testamentary were issued to the plaintiff, who duly qualified, and entered upon the duties of'his office. The action was to recover rent under the lease for March,- 1896. The trial judge directed a verdict in favor of the plaintiff, the exceptions to be heard in the first instance at general term. After argument the general term sustained the exceptions, and directed judgment absolute in favor of the defendant, with costs, from, which order, and the judgment entered thereon, the present appeal is taken.

The question involved goes to the plaintiff’s right to maintain the action, and this depends upon whether his powers as trustee under the will were in force at the time suit was brought. By the sixth clause of the will the property in question, with the balance of the residuary estate, was devised to the plaintiff, the executor named in the will, to have and hold the same in trust, with authority to manage, lease, mortgage, and sell and dispose of said real estate, and to divide and apportion the rents, issues, and proceeds of the sale thereof in two equal parts, one of which was devised and bequeathed to her daughter Mrs. Joseph Hillyard, and her heirs and assigns forever, to be paid as follows: $600 per year until the property was sold, and upon the sale to pay her or them the remainder of her portion of the rents, together with the entire proceeds of her share. Out of the other equal part of said rents the executor was directed to pay $600 per year to Mrs. Minnie G-owing, another daughter of the testatrix, until the real estate was sold; and in case of a sale $500 was to be allowed her, together with the income from the balance of her share of the proceeds during her life; and on her death her share of the rents and proceeds of sale was given and bequeathed to her children and the grandchildren of the testatrix, to be equally divided between them, and to belong to them and their heirs forever. It thus appears that a trust was created as to Mrs. Gowing (2 Rev. St. [9th ed.] p. 1797, § 55,) which terminated on her death in February, 1893. Upon the termination of this trust the estate vested in Mrs. Hillyard, Claudine C. Belding, and Edith S. Davison, heirs at law and next of kin of Mrs. Cowing, subject to the power of sale, if they conceded there was a necessity of its exercise. But they determined, as they lawfully might, to render the power nugatory, and, being of full age, they, with that end in view, on March 1, 1896, caused to be served upon the plaintiff notice that they elected to accept their respective parts, shares, and interests in the real estate instead of the proceeds of a sale. The real estate was not disposed of by the executor under the provisions contained in the will, and, as there was no lawful purpose for which a sale was absolutely required, there was no obstacle to a reconversion of the same by the parties in interest. Prentice v. Jansen, 79 N. Y. 478, 485; Delafield v. Barlow, 107 N. Y. 535; 13 W. Rep. 667; McDonald v. O’Hara, 144 FT. Y. 566; 64 S. B. 236. The rule that the exercise of the power of sale may be defeated whenever the devisees unite and elect to take the land instead of money has been applied to discretionary as well as to mandatory powers. Tabor v. Willets, 1 App. Div. 285 ; Mellen v. Mellen, 139 N. Y. 210; 54 S. R. 670. And see Power v. Cassidy, 79 N. Y. 602, at page 613. The statute provides that “ when the purposes for which an express trust shall have been created shall have ceased, the estate of the trustee shall also cease.” 2 Rev.. St. (9th ed.) p. 1801, § 67. The property having been reconverted prior to March 21, 1896, when the action was commenced, and the trust having ceased, the right of action for the. rent claimed did not belong to the plaintiff as executor or • trustee, but to the beneficiaries under the will, to whom the land belonged, and it passed to them as an incident of their ownership ; hence the judgment directed by the trial court in favor of the plaintiff was properly reversed, and one in favor of the defendant ordered. The court in Hetzel v. Barber, 69 N. Y., at page 11, after referring.to the rule that, where land is to be converted into money by the exercise of a power of sale, the persons entitled to the money (being of lawful age), can elect to take the land, where the rights of others will not be affected by the election, holds that when the purpose becomes wholly unattainable the power ceases; and that this is so although the purpose is defeated by the voluntary act of the person for whose benefit the power was created. See, also, Sweeney v. Warren, 127 N. Y. 426; 40 S. R. 304; Scholia v. Scholle, 113 N. Y. 261; 23 S. R. 171.

The point advanced that the trust continues because it does not appear from the case that certain bequests have as yet been paid, is without merit. The bequests were not made charges-on the land, nor did their payment form any part of the trust on which the property was devised. Clift v. Moses, 116 N. Y. 144; 26 S. R. 405. Independently of this, the legal presumption is that the bequests have been - satisfied according to law, and, if they have not, the fact was one peculiarly within the plaintiff’s knowledge, and in respect to which the burden of proof was upon him in order to sustain his theory that the-trust continued. Prentice v. Janssen, 79 N. Y., at page 487.

Another point raised by the plaintiff requires consideration.. The general term of the court below, in directing judgment absolute for the defendant, awarded against the plaintiff personally all the costs of the -action, together Avith an extra alloAvance of 5 per cent, upon the amount of the claim. It had no poAver to make such a direction, except for mismanagement and bad faith in the prosecution * "x" * of the action.” Code, § 3246; Hone v. De Peyster, 106 N. Y. 645; 11 S. R. 309 ; Wilbur v. White, 56 How. Prac. 321. Ho application to charge the plaintiff personally with the costs was made in the court below. Such an application, according to the practice, requires a special motion upon notice. Slocum v. Barry, 38 N. Y. 46. Ho affidavits were read pro or con, and no hearing in defense appears to have been afforded. Indeed, the order itself does not recite that mismanagement or bad faith ” AAras-even charged, nor does it contain any adjudication Avhatever upon the subject. Jack y. Robie,48 Hun, 181,185. The action, if maintainable at all, was necessarily brought by the plaintiff in his representative capacity. The fact that the general term disagreed with the result arrived at by the trial judge raised no inference of bad faith, and in and of itself furnished no grounds for departing from the ordinary course pursued of allowing the costs to be collected from the estate when the .action is by an executor or trustee in his representative capacity. 3 Wait. Prac. 530, 531; Dodge v. Crandall, 30 N. Y., at page 308 ; Lindslay v. Deafendorf, 43 How. Prac. 90.

It follows that so much of the order appealed from as reverses the trial term and awards judgment in favor of the defendant must be affirmed, and that that part which directs the costs to be paid by the plaintiff personally must be reversed, with liberty, however, to the defendant to make an application to the court below in respect to charging the plaintiff personally with said costs on notice and, proof of “ mismanagement and bad faith,” as it may be advised. Ho costs to either party upon this appeal.

All concur.


text:
    Frank W. Fechtman v. George H. Huber.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Master and servant—Proof of relation.
    The relation of master and servant between defendant and the person of whose negligence plaintiff complains is proved by the admission of defendant’s representative, supplemented by other evidence to .that effect, and by defendant’s admission that such person was performing services for him at the time of the accident, though defendant denies the employment.
    Appeal from trial term, New York County.
    Action by Frank W. Feohtman against George H. Huber for damages to plaintiff’s horse and carriage, which he left in charge of an alleged employé of defendant while he went inside defendant’s road house, at which he had stopped. When the horse was brought up by the alleged employé for plaintiff to continue on his way, a horse and wagon in front backed down, and the wagon struck plaintiff’s horse, causing him to run away. From a judgment entered on a verdict in favor of plaintiff for $200, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    William Sulzer, for appellant; Arthur J. Westennayr, for respondent.
   BARRETT, J.

—There was sufficient evidence to warrant the submission to the jury of the two questions which were presented in this case. These questions were: First, whether the “ shedman,” so called, was the defendant’s servant: and, if so, second, whether this servant was guilty of negligence. The jury have found for the plaintiff upon both issues. There was no question of contributory negligence. The learned judge so stated in his charge, without exception, and there was no-request to submit, any possible question on that head to the jury. There was in fact no such question in the case.

The defendant complains that the declarations of one Fischer,, to the effect that the-negligent shedman was in the defendant’s, employ, were incompMent. But this testimony was not objected to. On the contrary, it was treated as competent, and 'Fischer himself was called by the defendant to contradict it. The reason why it was not objected to is obvious. Fisher was-the defendant’s road-house manager and alter ego. He substantially so testified. The defendant himself admitted that-Fischer was his general representative. There is nothing, therefore, in the point now for the first time made, that. Fischer’s declarations were incompetent. The evidence of his admission, testified to by three witnesses, is sufficient basis for-the verdict. There was also the testimony of the witness Brown that the man in question was employed by the defendant ; and the defendant himself, although he said the man was not in his employ, admitted that it was the duty of this man referred to to take care of the horses ; that is, to put them in the shed and bring them out again.” He was thus, according-to the defendant’s own account, performing services for him at the time of the accident. The evidence on this head is ample to support the verdict. ^

The evidence of the shedman’s negligence is given by the plaintiff. There was another vehicle in front of the plaintiff’s horse and wagon. This vehicle was backed down so that its wheels struck the plaintiff’s horse. The latter was thereby •startled and became unruly. The plaintiff testifies that the shedman, “ when he saw the other horse back, stood perfectly still, and made no effort whatever to get out of the way.” It was to be expected that the horse would be frightened if the wheels should strike him. And the jury had a right to find that the shedman was negligent in not attempting, while the backing was going on, to remove the plaintiff’s horse out of harm’s way. The negligence was in making no effort to avert, the collision, and it was not cured by the shedman’s subsequent effort to prevent the horse’s escape. This evidence is absolutely uncontradicted, and it is reinforced by the defendant’s-failure to call the shedman as a witness, or to explain in any way why this was not done. Indeed, the case was tried mainly upon the question first considered, and the question of the shedman’s negligence was not specifically raised. After-moving to dismiss upon the first ground, the learned counsel for the defendant did add, “ There is no proof of our negligence.” But this amounted to no more than a continuous disavowal of the shedman’s agency. It was the same as saying, “ We move to dismiss upon the ground that there is no proof that the shedman was in our employ, and consequently there-is no proof of our negligence.”

The judgment and the order denying the motion for a new trial should be affirmed, with costs.

All concur.


author: PATTERSON, J.

text:
    John Floettl v. Third Ave. R. Co. et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    1. Negligence—Master and servant.
    A street-railroad company is not chargeable with negligence where an employé of an independent contractor, while in a trench under the track, repairing it, was injured by a passing car in charge of railroad employes who did not know that any one was in the trench.
    2. Master and servant—Safe place to work—Assumption of risk.
    _ A master is liable for injuries received by his servant, while working in a place which both of them know is dangerous, under certain conditions, where, the servant goes in, relying on the master’s assurance that such condition will not arise.
    Appeal from trial term, New York County.
    Action by John Floettl against the Third Avenue Railroad Company and the Jonson Engineering & Foundry Company for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Leopold Leo, for appellant; Henry L. Scheuerman, for respondent Third Ave. R. Co.; John Hotman, for respondent Jonson Engineering & Foundry Co.
   PATTERSON, J.

—This action was brought to recover damages for injuries sustained by the plaintiff, which injuries, it is alleged, resulted from the negligence of both the defendants. lie now appeals from judgment entered upon a dismissal of his complaint at the trial.

The Third Avenue Railroad Company is a corporation operating a line of street-railway cars, moved by cable power, in the city of Hew York, and the defendant the Jonson Engineering & Foundry Company is a manufacturing corporation engaged in the business of making and putting in place appliances ór apparatus to move cable cars, such as were used by the railroad company. On the 17th of March, 1894, the plaintiff was in the employment of the defendant the Jonson Company, and had been in such employment for some months preceding that date. On the day named, the Jonson Company, by its employés or operatives, was, as an independent contractor, doing certain work for the Third Avenue Railroad Company about and under its track, and this plaintiff was one of such operatives or hands engaged in doing some of that work, at a point in Park Row, in .the city of Hew York, opposite the Times Hewspaper Building. It appears that, at the place indicated, a trench or excavation had been dug under the bed of the easterly track of the railroad company, and that it was necessary for some of the employés of the Jonson Company to go into this hole or trench, and there do work in drilling holes through a yoke, part of the apparatus connected with the subterranean running equipment of the railroad company’s system. This hole or trench is described as not being deeper than one foot from the level at which the rails rested; that is, below the bottom of the rails. To get in this trench, those who worked in it first laid themselves on their backs, “ got hold of the rail, and then pulled themselves, in that way, under the rail, and towards the cable under the track, and then the work that they had to do was at the yoke.” This plaintiff, having entered in that way, worked at a yoke on the east side, and had his face turned towards the east when the accident happened. It appears that, early in the morning of the day on which the accident occurred, the plaintiff had Been0 at work in this trench; that he came out, and remained out for about an hour and a half, when the foreman of the Jonson Company directed him to go down again. To this the plaintiff objected, saying that he could not work there, that he was too large a man for it, and had not room to work. Whereupon the foreman said to him : “You have to go in there. The wrork has to be finished bjr 5 o’clock. The cars will stop until 5 o’clock.” The plaintiff then said : “ What will I do in there if it does come ? ” To which the foreman replied : “ The car will stop. Go down.” It was testified that the plaintiff was in the hole only half an hour before he was hurt, and the accident occurred about 15 or 20 minutes past 4 o’clock in the morning. It was yet dark. The plaintiff and those working with him were lifting up shafting upon the yoke when Mr. Jonson cried out: “ Look out, Floettl and Wein ; the car is coming! ” It did come, and stopped over the trench. The cable began to move, and its vibration annoyed the plaintiff, and he instinctively raised his hands and caught the rail, the car started, and a wheel of the car passed over his fingers, and cut them off. The car came from the south, moved by a slow cable, as it came along Park Row, up to the point at which the plaintiff was working. There it stopped immediately over the hole in which the plaintiff was at work. It remained stationary long enough to take up a speedier cable, to which it was to be attached at that point. The plaintiff grasped the rail between the front and rear wheels of the car, the motion was imparted to the car while the plaintiff was still grasping the rail, and the injury ensued in manner as stated,—the plaintiff’s fingers being cut off by the rear wheel of the car. upon that state of the proof, the learned judge at the trial dismissed the complaint, holding that the evidence was insufficient to show negligence on the part of either the railroad company or of the Jonson Company.

As affecting the railroad company, the disposition of the cause made by the learned judge was right. There was no negligence whatever on the part of that company, or any of its agents or servants, leading to the injuries suffered by the plaintiff. He was not an employe of the railroad company. That company owed him no further duty than such as it owed to any person lawfully in the street, or to any person working upon or under the tracks to the knowledge of its officers or servants. The foreman of the Jonson Company ivas in no sense or manner authorized by the railroad company to make any statements or give any assurance to the plaintiff connected with the operation of the railroad company’s road or the running of its cars. It was doubtless bound to run those cars with regard to the safety of any one at work upon the apparatus connected with the running of its cars. The evidence is altogether insufficient to show that that ivas not done, or that the car ivas not carefully operated, or that the railroad company’s servants in charge of the car were in any way remiss in .any duty they owed to any person. The car reackecl the point at which it stopped to take up the speedier cable without injury to any one, and there is nothing to show that those operating the car had any knowledge that any one ivas in the trench, nor is it shown that the cable ivas negligently ■operated. The fingers of the plaintiff were cut off by the rear Avheel of the car, the plaintiff’s hand grasping the rail betxveen the front and rear Avheels Avhile the car Avas motionless. It is impossible to see how, without some evidence to shoAV that the railroad company’s servants knexv, or ought to have knoxvn, that some one Avas in the trench, it can be made responsible for the starting of the car without giving Aimming. The testimony ivas entirely inadequate to make out a case of negligence against the railroad company, and the complaint with regard to it was, therefore, properly dismissed.

But, Avith reference to the defendant, the Jonson Company, there Avas enough in the testimony to go to the jury on the plaintiff’s contention that the company did not furnish to the plaintiff that protection to which he was entitled, in Adexv of the assurance he had received from the foreman. This vieAv does not result, in this case, from the application of the rule that an employer is bound to furnish to his servant a safe place in Avhich to Avork. Where the danger is ltnoAvn to the employé, he has an opportunity to -decline the service. If, under ordinary circumstances, and with full knoAvledge of the danger, he enters upon that service, he takes the risk of his employment, precisely in the same Avay he would take the risk of operating dangerous machinery, knoxvn to him to be dangerous. Hickey v. Taafe, 105 N. Y. 26 ; 6 St. Rep. 406; Cahill v. Hilton, 106 N. Y. 512; 11 St. Rep. 26; Cullen v. Roofing Co., 114 N. Y. 45 ; 22 S. R. 298; Shields v. Railroad Co., 133 N. Y. 557 ; 44 S. R. 72. As Avas said in the case of McGovern v. Railroad Co., 123 N. Y. 287, 33 S. R. 416 :

“ If the servant puts himself in the way of dangerous machinery, with knowledge of its character, or places himself in the way of bodies moving in their accustomed orbit Avith irresistible force, and is thereby injured, it will generally be regarded as the result of his own carelessness; but, if he is engaged in a business which may be safely carried on according to the degree of care and caution used in prosecuting it, but by omission of such care may become hazardous to human life, it is the duty of those carrying on such business to adopt all reasonable precaution to avoid the occurrence of such, danger by adopting the modes of conducting the business to the avoidance of the ascertainable dangers accompanying its exercise. In other words, it is the duty of the master, having control of the times, places and conditions under which the servant has to labor, to guard him against probable danger in all cases in which that may be done by the exercise of reasonable caution.”

That the place at which the plaintiff was put to work was one which might become dangerous is manifest, and the particular danger to which the plaintiff would be exposed was apprehended and anticipated by both the plaintiff and the person standing in the place of the master on the day and at the time the accident occurred. The testimony of the plaintiff and of the witness Wein is quite direct to the point of the reluctance of the plaintiff to enter into the trench, in view of the possibility of the cable being started and of the car running while he was working therein. It was known that, under such circumstances, that place would become dangerous, notwithstanding which the direction was given by the, foreman to the plaintiff to go into the trench, and that direction the plaintiff would not obey until he received an assurance that he would be protected from what he apprehended to be the danger of complying with it. Upon his expressing his fears and his reluctance, he received from the foreman that which was equivalent, under the circumstances, to an assurance that the conditions were or would be such that the apprehended peril would not occur. ITe was told that the work at the yoke must be completed by 5 o’clock and that cars would not run until 5 o’clock. In view of what was said between the plaintiff and the foreman, the only construction that can be given to the language of the foreman is that it was an assurance that the plaintiff would be exempt from the particular danger he apprehended, and from which it was obviously the duty of his employers to shield him. There is nothing in the testimony whiclicountervails this view. The plaintiff did, in further conversation, ask the question, What will I do in there if it does come % ” referring to the car; to which the foreman responded: “ The car will stop. Go down.” This was but a reiteration, in substance, of what was said before; and, although the words “ until 5 o’clock ” were omitted in this second assurance, the plaintiff was justified in understanding that this remark related to the hour, and that no cars would traverse the track where he was working until 5 o’clock, which, as before remarked, was the hour at which the work was to be completed. That the car which injured the plaintiff did stop at 20 minutes past 4, but only long enough to take up another cable, and stop directly over the trench in which the plaintiff was working, cannot be adjudged to be a compliance with the assurance the plaintiff received.

We do not think this is a case in which it can be said that the plaintiff was coerced to enter the trench. He did not go into it in obedience to the command, but in reliance on the assurance given. Nor did he rely upon the better judgment of the master concerning the safety of the place in which he ivas work. His own evidence excludes that consideration. But he relied, and had the right to rely, upon the promise of his superior, who ivas in charge of the work, that the place would be made safe under the conditions in which he was induced to work in it. That- that was the assurance given, and binding upon the master, is quite clear in this case. It was not a mere promise or assertion or guaranty of a fellow servant. The nature of the work done, the relation of this foreman to that work, the control which he had over the Jonson Company’s servants employed thereon, all show, prima facie, at least, that this foreman was in a place of responsibility, directing work which required skilled labor of a peculiar kind, in and about an apparatus somewhat complicated in its structure. And so the foreman ivas representing the master in and about that kind of work, the superintendence and direction of whiclr, had the master been an individual, and not a corporation, might well have been assumed by the master himself. We think that there was an undertaking on the part of the Jonson Company that the cars would stop until 5 o’clock, and that the plaintiff ivas justified in relying upon it, and that the negligence of the Jonson Company was in making a statement, either untrue or not known to be true, and thereby inducing the plaintiff to enter the trench, or, having honestly made the statement, in not seeing to it that the car ivas not permitted to come over the trench before 5 o’clock, and while the plaintiff was at work therein.

It is contended on the part of the Jonson Company that the plaintiff had warning that the car was coming, but, instead of keeping still, he put his hand on the rail, and thus caused the injury. The evidence is entirely insufficient to show that the plaintiff received any such warning as would have enabled him, intermediate the giving of the alleged notice and the time at which the car reached the trench, to come out of that trench, reference being had to the peculiar manner in which a person was obliged to enter and come out of the excavation; and it certainly cannot be said that, upon the testimony as it stands, the plaintiff is responsible for his own injury by putting up his hands, which act was done instinctively, in consequence of the vibration of the cable near his head,—it not being shown that he had any reason whatever to think that the car, having then stopped, would proceed in its transit before he could relax his grasp and change his position.

We think, therefore, the nonsuit as to the Jonson Company was erroneous. The judgment must be affirmed, with costs, as to the Third Avenue Railroad Company, and as to the Jonson Company reversed, with costs to the appellant to abide the event.

All concur.


author: PER CURIAM.

text:
    New York & N. J. Globe Gaslight Co., Limited, v. Metropolitan Inv. Co. of New York et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    •Corporations—Unauthorized contracts—Ratification.
    Assent to a proposed contract of a corporation, given by the directors before its execution, is a ratification of the contract within a provision of the charter that unsealed contracts shall not be binding on the corporation unless ratified by the directors.
    Appeal from special term, Suffolk County.
    Action by the New York & New Jersey Globe Gaslight Company, Limited, against the Metropolitan Investment Company of New York, impleaded with others, to foreclose a mechanic’s lien. There was a judgment for $464.76 in favor of plaintiff, and defendant appeals.
    Paul E. De Fere, for appellant; Ernest E. Baldwin, for respondent.
   PER CURIAM.

—This action was brought to foreclose a mechanic’s lien. The alleged lien was not established, but the plaintiff obtained a money judgment representing the purchase price of a gas machine and other mechanical appliances put up on the appellant’s premises at Edgewood, Long Island, and the value of certain labor performed in connection therewith. The appellant denied that the purchase was made' with its authority. The proposition to furnish the gas machine was contained in a letter sent .by the'plaintiff to Mr. Howard P. Wheeler, "who was addressed therein as the president of the Metropolitan Investment Company. Three days later, a written order for the machine was sent to the New "York & New Jersey Globe Gaslight Company, signed by Mr. Wheeler with his own name, and that of Mr. J. M. Applebaum, the secretary of the investment company. The corporate name of the appellant is not mentioned in this paper, and the establishment at Edgewood is spoken of as “ my factory.” Nevertheless, the proof suffices to show"quite clearly that Mr. Wheeler was authorized to buy, and did buy, in behalf of his corporation. There were only three directors, Mr. Applebaum, a Mr. Lindgren, and himself. They discussed the subject of a gas plant for the factory at one of the meetings of the board, and left the matter in the hands of Mr. Wheeler, who went on, and made the purchase. The testimony in regard to this meeting justifies the inference that Messrs. Wheeler and Applebaum, constituting a majority of the board, then and there agreed as to the propriety of buying-the gas machine, and that Mr. Lindgren, the third member, acquiesced in their determination. But the appellant’s certificate of incorporation provides “ that no debts shall be contracted, or liability incurred, or contract made or entered into by or on behalf of this corporation, involving a sum or a liability for a sum of $100 or over, unless the same be by a writing under the corporate seal of this corporation; and all contracts or agreements in violation hereof shall not be binding on the corporation unless duly ratified by its board of directors; ” and it is urged that this limitation was sanctioned by the business corporations law (chapter 691, Laws 1892), and that it made the contract for the purchase of the gas machine ultra vires, inasmuch as it was not under seal. Assuming thé validity of the limitation, we think that the making of the agreement with the knowledge and assent of all the directors manifested at a meeting in advance of the transaction must be deemed equivalent in law to a ratification thereof by the board, within the above terms of the certificate of incorporation.

The judgment is affirmed, with costs.


author: BROWN, P. J.

text:
    George C. Meyers v. Brooklyn Heights R. Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Street railroads—Refusal to give transfer—Action for Penalty.
    The penalty for refusal to give a transfer to “any passenger desiring to make one continuous trip ” between any two points on a street-railroad system (Laws 1892, c. 676, § 104) cannot be recovered by one who demanded a transfer with the sole object of recovering for refusal.
    Appeal from trial term, Kings County.
    Action by George C. Meyers. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Charles A. Collin, for appellant; Daniel Cameron, for respondent.
   BROWN, P. J.

—The complaint in this action sets forth 10 separate causes of action, by each of which the plaintiff seeks to recover a penalty of $50 for the defendant’s refusal to furnish him a transfer between different lines of its street-surface railroads in the city of Brooklyn, in alleged violation of section 101 of the railroad law (chapter 565, Laws 1890, as amended by chapter 676, Laws 1892). ' Hpon the trial each, party moved, at the close of the testimony, that the court' direct a verdict in its favor, and after argument a verdict was directed in favor of the plaintiff for $500. A motion for a new trial having been made and denied, the defendant appealed to this court.

The facts of the case áre undisputed. On February 14,1893, the Brooklyn City Railroad Company leased to the defendant for the term of 999 years certain street-surface railroads in the city of Brooklyn. Among the roads so leased was that known as the “ Fulton Street Line,” which, beginning at the Fulton Ferry, ran along Fulton street to Alabama avenue, and thence to Atlantic avenue. Also the road which ran along Tompkins avenue to Fulton street, and thence along Fulton street to Nostrand avenue, and known as the “ Tompkins Avenue Line.” On September 3, 1894, the plaintiff boarded a car of the Tompkins Avenue Line on Fulton street, and, having paid his fare of five cents, he rode to the intersection of Nostrand avenue and Fulton street, and there demanded of the conductor a transfer ticket to enable him to take a Fulton street car, and, without further charge, ride further down Fulton street, which demand was refused. On the same day, on nine other occasions, the plaintiff rode upon a Fulton street car to Tompkins avenue, in each case paying his fare of five cents, and there demanded of the- conductor of the car a transfer ticket to enable him without further charge to ride upon the Tompkins avenue car, which demand was in each case refused. It is the plaintiff’s claim that by such refusals the defendant incurred the penalties sued for and recovered in this action. The section of the railroad law which it is claimed supports this action is as follows:

Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any- railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party. The provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village.”

The learned counsel for the appellant contends (1) that the words, “ every such corporation entering into such contract,” do not apply to the lease of the Brooklyn City Railroad Company ; and (2) that if it be held to have such application, the .last sentence exempts from the operation of the section all portions of the leased railroad, because the road so leased-is not wholly within the city of Brooklyn. We deem it unnecessary to decide • these questions at this time, for the reason that we are of the opinion that, assuming that the section of the statute is applicable to the defendant, the plaintiff failed to show that he had been denied any legal right which the statute gave him. The command of the statute is that the corporation shall carry for a single fare, between any two points on its road, “ any passenger desiring to make one continuous trip between such points,” and the plaintiff’s whole case must rest upon the proof of his allegation that upon each of the occasions when he was refused a transfer ticket he desired to make a continuous trip from the point where he first boarded the car to a point on the line to which he demanded to be transferred. Unless he has established that fact, he is not -within the protection of the statute, and no penalty has been incurred by defendant by refusing his demand. That he did not desire to make a continuous trip between two points on the connecting lines is too plain for argument. His whole purpose was not to be transferred at the point where he made his demand. ITe knew that the demand would be refused, and he had, when he boarded the car, no intention to proceed beyond the point where the two fines connected, and no desire to go beyond that point. His whole purpose was fulfilled when he reached the place where he could conveniently have his demand for a transfer ticket refused. Upon this point the plaintiff gave the following testimony :

“ The Court: How prove that he was riding to test the company on those points. The Witness : That is what I was riding for. Q. by Mr. Whitehouse : Did you start out for that purpose ? A. líes, sir; I started out on that purpose. Q. When you started out to take the car from Myrtle avenue and Tompkins, you had no particular point in Brooklyn that you desired to go to? A. I felt like taking a ride. Q. Do you mean that you felt like taking a ride, or felt like trying to test that ? A. I felt like taking a ride that evening, and I thought I would test it that same time. Q. Was this at night? A. Yes, sir. Q. Where did you feel like taking a ride to ? A. Just on those two‘roads. Q. You had no particular point on any one of those railroads where you desired to go, did you ? A. Ho, sir. The Court: That subject is exhausted. He says he was there to test this question ; that is all.”

The purpose intended to be accomplished by the section of the statute upon which this action is based was a public one. It is expressed in the words of the act to be “ that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare.” While the penalty prescribed for the violation of the legislative command is permitted to be enforced in an action brought in the name of a passenger, no public good would be accomplished by permitting it to be used as an instrument for the mere personal benefit of an informer. Statutes of this character have in many cases received judicial construction, and in all to which our attention has been directed the courts have distinctly disavowed the construction that rests upon a right to sue for penalties for individual benefit, and profit but have always given full effect to the public character of the law. This is notably so in all cases where the • question presented has been whether a plaintiff was to be limited in his recovery to one penalty, or whether he would be permitted to accumulate a large number of penalties, and bring one action to recover the whole mass. The case of Fisher v. Railroad Co., 46 N. Y. 644, is the only authority cited by the respondent to sustain his recovery. The statute upon which that case rested was materially different from the section of the railroad law now under consideration. It was that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered together with the excess so received by the party paying the same.” It will be observed that that statute does not contain the word “ passenger.” The application of the present statute is not only limited to a passenger, but to one desiring to make a continuous trip between points on the connecting lines. This limitation precludes one from suing for a penalty who, having no intent to travel between two such points, merely rides to the transfer point, and there makes it his occupation to demand transfer tickets, for the purpose of suing the company for his- own private gain. To call such a person a “ passenger ” desiring to make a continuous trip between two points on the connecting lines would be to defeat the true purpose and intent of the statute.

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

All concur.


author: CULLEN, J.

text:
    Frank E. Conkling v. Brooklyn Lumber Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Demurrage—Liability of consignee.
    A consignee of lumber, shipped to him under an executory contract. to purchase, is not liable for demurrage, where the delay was due to his refusal to accept the lumber without an abatement of price, because it was not of the specified quality.
    Appeal from trial term, Kings County.
    Action by Frank E. Conlding against the Brooklyn Lumber Company to recover damages in the nature of demurrage for the unreasonable detention of plaintiff’s lighter, Sarah, at defendant’s wharf at Brooklyn, to which she had carried a cargo - of lumber owned by and consigned to defendant. From a judg— ment for $100 damages and $129.26 costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    George C. Case, for appellant. Edwin G. Davis, for respondent.
   CULLEN, J.

—The general rule of law is that, as the consignee is not a party to the original contract of affreightment, he is not bound to accept the cargo at any particular time and incurs no responsibility by a refusal or delay in accepting it. He becomes a party to the contract by accepting the cargo, but then to no frather extent than as the conditions of the contract are expressed in the bill of lading. Where the bill of lading makes no provision for demurrage, the consignee incurs no liability therefor. Gage v. Morse, 12 Allen, 410. Still, there is an exception to the general rule, and a consignee, who was also the general owner of the cargo, is liable for unreasonable detention of the vessel at the port of discharge. Dayton v. Parke, 142 N. Y. 391; 59 S. R. 788; Scholl v. Steel Co., 101 N. Y. 602.

In the case before us, as we interpret the testimony (though it is not entirely clear on the point), the defendant- had made an executory contract for the purchase of a quantity of lumber. The vendors shipped the lumber to defendant by plaintiff’s lighter. The bill of lading contained no provision for demur-rage. The defendant failed to accept the lumber for a period of some 10 days. The plaintiff testifies that the only reason given for the delay -was the inconvenience to the defendant in receiving the lumber until its wharves were clear. The defendant’s officers testified that the lumber was not of the quality contracted for; that for this reason they declined to accept it, and notified both the plaintiff and the vendors of the fact; that afterwards the vendors agreed to an abatement of price, and thereupon the defendant accepted the lumber. If the contract of sale was executory, the defendant was not the owner of the cargo. If the lumber did not comply with the terms of the contract, the defendant was justified in refusing to accept it. The subsequent agreement to accept was substantially a new contract, and did not operate retroactively, and render the defendant liable for previous delay in the discharge of the cargo, «though for any delay after the defendant agreed to take the lumber, and accepted the bill of lading, it would be responsible. Crawford v. Mellor, 1 Fed. 638.

The judgment and order appealed from should be reversed, and a new trial granted, costs to abide event.

All concur.


author: WILLARD BARTLETT, J.

text:
    J. Esler Eckerson et al. v. Charles D. Archer et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Evidence—Opinion op court on former trial.
    The opinion of a judge on the issue of fact in a trial before him which, did not result in a judgment is not admissible in evidence on a second trial before another judge.
    Appeal from trial term, Rockland County.
    Action by J. Esler- Eckerson, individually and as executor of James Eckerson, deceased, and others, against Charles D. Archer and George Archer, to recover possession of real estate. Erom a part of the judgment rendered at the trial before the court without a jury, plaintiffs appeal.
    Ralph E. Prime, for appellants; Irving Brown, for respondents.
   WILLARD BARTLETT, J.

—This case has been twice tried. The first trial was before Mr. Justice Cullen without a jury. At the conclusion of the evidence, Judge Cullen rendered an oral decision, which was taken down by the stenographer in attendance, but which never became effective, inasmuch as Mr. James Eckerson, one of the original plaintiffs, died before any written decision ivas prepared - and signed. A jury was also waived on the second trial, which now comes up for review. The plaintiffs have recovered a portion, but not all, of the property for which they sued. They have appealed from that part of the judgment which, is not in their favor. In disposing of the appeal, it is necessary to consider only a single ruling of the learned trial judge, for that appears so clearly to be erroneous as to demand a reversal. He received in evidence, against the objection and exception of the plaintiffs, the decision of the case announced by Mr. Justice Cullen at the close of the testimony upon the first trial, saying that he wished to know what the decision of Judge Cullen had been, and all that had transpired on the previous hearing. This proof was not admissible. The opinion of one judge upon the issues of fact-at the end of a trial which does not result in any judgment is not competent evidence to guide or influence the determination of those issues of fact by another judge upon a second trial. See Insurance Co. v. Herbert, 87 Hun, 285 ; 33 N. Y. Supp. 819. The admission of such an opinion is especially objectionable in a case like-the present, where witnesses were examined who were not called at all upon the first trial. The error might be overlooked is harmless to the appellants were it not that the judgment, before us embodies precisely the conclusion reached by Mr. Justice Cullen, and that the trial judge indicated unmistakably that he was influenced by Judge Cullen’s view of the facts. Avhere he said, at the close"of the testimony: “I think I shall follow the decision of Judge Cullen. * * -x" I think I will follow Judge Cullen’s decision, and that will be doing substantial justice.” While the result reached by the learned judge may have been quite correct, the plaintiffs were entitled to his individual judgment on the questions of fact without regard to any other judicial opinion on the facts; and this they aid not have. The case must therefore go back for a new trial.

Judgment reversed, so far as appealed from, and new trial ordered, with costs to abide event.

All concur.


text:
    The People v. Murray Hill Bank.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.
    1. Corporations—Dissolution by directors—Attorney general.
    The pendency of a proceeding by directors of an insolvent bank to dissolve it does not bar an action by the attorney general for the same relief.
    2. Receivers—Removal by branch oe same court.
    Where a court has acquired jurisdiction over the funds of an insolvent corporation, and has appointed receivers to administer them, a co-ordinate branch of the same court cannot take the funds out of the hands of such receivers, and place them in possession of others appointed by it in another proceeding.
    Appeal from special term, Kings County.
    Action by the attorney general for the dissolution of the Murray Hill Bank. From orders striking out the answer as frivolous, and directing judgment in favor of plaintiff, and appointing receivers, defendant appeals. Order striking out answer affirmed. Order appointing receivers reversed.
    Louis Marshall, for appellant; W. E. Kisselburgh, Jr., for the people.
   BROWN, P. J.

—There are two appeals before the court in this action. The first is from an order appointing temporary receivers; the second, from an order overruling the answer of the defendant as frivolous, and directing judgment for the relief demanded in the complaint. The action was brought by the attorney general in the county of Kings, in the Second judicial district, to obtain a judgment dissolving the defendant corporation, and declaring forfeited its corporate privileges and franchises. The essential allegation of the complaint is that the defendant was insolvent, that it had suspended its ordinary business, and that the superintendent of banks, had pursuant to the authority of the banking law of the state, after an examination of its books and affairs, determined that it was unsafe for it longer to continue to transact business, and had taken possession of its bank and its property. The answer contains no denial of the insolvency of the defendant, but it alleges as a separate defense that prior to the commencement of this action a majority of the directors having the management of the concerns of the defendant had commenced in this court, in the First judicial district, a proceeding for the voluntary dissolution of the corporation, pursuant to the provisions of the Code of Civil Procedure, and that the ground for such application was that the defendant was insolvent; that such proceedings had been had, upon due notice to the attorney general, that on September 2, 1896, an order had been made, at a special term held in and for the city and county of New York by Mr: Justice Pryor, directing all persons interested in the defendant corporation to show cause, upon a day named therein, why the defendant should not be dissolved; that upon application of said petitioners, and upon like notice to the attorney general, and upon the same day, and at the same term of the court, an order had been made, and duly entered appointing two temporary receivers of the property of said corporation; that said receivers had duly qualified and filed the security required of them by the court, and duly demanded possession of the property of the defendant from the said superintendent of the banks; that an appeal had been taken from said last-named order by the attorney general; and that such proceedings were still pending in this court. The answer contained other matter alleged as separate defenses, and denials of other allegations of the complaint; but none of them were, we think, material to the question presented by the complaint, and require no notice. Upon the summons and complaint, and upon the affidavit of the superintendent of the banking department of the state, a motion was made by the attorney general, at a special term held at the city of Newburgh by Mr. Justice Dickey, on September 12, 1896, for the appointment of temporary receivers of the defendant in this action. In opposition to such motion, the defendant read all the papers presented to the court in the First department in the proceeding for a voluntary dissolution of the corporation, and the order of Mr. Justice Pryor appointing, as temporary receivers of the defendant, Mr. Spencer Trask and Mr. Miles O’Brien, of the city of New York, and also the bonds filed by said receivers, and the approval thereof by a justice of this court. Thereupon, after argument, Mr. Justice Dickey granted the motion of the attorney general, and appointed as temporary receivers of the defendant in this action, Mr. Edward FI. Flobbs, of Brooklyn, and Mr. Benjamin B. O’Dell, Jr., of Newburgh.

The order of Mr. Justice Dickey appears, from his opinion, to rest upon' his determination that, inasmuch as the superintendent of the banking department had taken possession of the bank and ifs business and property, the directors of the corporation, at the time they presented their petition to the court in the proceeding for a voluntary dissolution, were not, in the language of section 2419 of the Code of Oivil Procedure, directors * * * having the management of the concerns the corporation,” and that consequently the special term held by Justice Pryor, at which said petition was presented, had no jurisdiction to entertain the application. This proposition the attorney general has very fully argued at our bar. Since the argument, the order granted by Justice Pryor has been affirmed by the appellate division in the First department, and that decision is conclusive upon the right to maintain the proceedings for the voluntary dissolution. In re Directors of Murray Hill Bank, 41 N. Y. Supp. —. The power of the court in the First department to entertain that application cannot be questioned in this action. The court had jurisdiction of the subject-matter, and the authority to appoint temporary receivers, and it necessarily possessed the power to decide any controverted question of fact upon which exercise of its power depended. “ Jurisdiction,” in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power to adjudge concerning the general questions involved, and is not dependent upon the state of facts which may appear in a particular case. It is entirely independent of the manner of its exercise, involving the power to decide either way upon the facts presented to the court. Hunt v. Hunt, 72 N. Y. 217; People v. Sturtevant, 9 N. Y. 263; People v. Dwyer, 90 N. Y. 402 ; People v. McKane, 78 Hun, 154; 60 S. R. 196, and cases cited. As the Code has conferred upon the supreme court the power to dissolve a corporation upon the petition of a majority of the directors having the management of its concerns, the question whether the petitioning directors had the management of its concerns was a judicial one, which the court at special term was called upon to decide; and its decision either way did not affect its jurisdiction, and could be reversed only upon appeal. It may have been erroneous, but, until reversed, it is conclusive in all other tribunals upon the questions presented. For the purpose of this appeal, therefore, we must assume that the fact that the superintendent of the banking department had taken possession of the bank and its property and business did not preclude the directors from prosecuting the proceedings for a dissolution of the corporation, or deprive the court of the right to exercise any of the powers which the statute conferred upon it in proceedings of that character. B.ut we aré also of the opinion that the pendency of the proceedings for a voluntary dissolution are not a bar to the maintenance of an action by the attorney general, in the name of the people, for substantially the same relief. It was so decided in People v. Seneca Lake Grape & Wine Co., 52 Hun, 174, 23 S. R. 346. While it is true that the statutes relating to the voluntary dissolution of corporations have, since that case ivas decided, been very much changed, and the power which the court may exercise in those proceedings very much enlarged, and while the grounds upon which dissolution was sought in that action were different from those alleged in the petition of the directors in the voluntary proceeding, the relief sought in each case was the same, and we think the decision rested upon a sound principle of law. There would, we think, be serious objections to treating a proceeding for the voluntary dissolution of a corporation as an action between the people and the corporation, or in holding that the people were a party to that proceeding, in the true sense of that term. But, however that may be, we place our decision upon the ground the state will not be held to have surrendered its right to enforce against a corporation a forfeiture of its charter, without express legislative declaration to that effect. The right and power conferred upon the officers of an insolvent corporation to prosecute a proceeding for the voluntary dissolution thereof, and the distribution of its property, through the medium of receivers, among those entitled to receive it, is permissive merely, and cannot be construed as a surrender by the state of its right to enforce a forfeiture of the charter of the corporation whenever it sees fit to do so. The proceedings by the directors depend for their success upon proof of many facts which are not material in an action by the people, and we think the attorney general may prosecute an action upon any of the grounds specified in section 1785 of the Code of Civil Procedure, without any regard to proceedings instituted by the directors, whenever in this opinion the public interests require that such an action should be brought. Code Civ. Proc. § 1808. We therefore conclude that the answer pf the defendant sets forth no defense, and the order overruling it as frivolous must be affirmed.

But, while we affirm the right and power of the attorney general to maintain this action for the purpose of obtaining a judgment dissolving the corporation, it by no means follows that receivers of the property of the corporation should be appointed herein, either by an intermediate order, or by final judgment, while the other proceeding is pending. The distribution of the property of the corporation among the creditors and stockholders is chiefly an administrative function. It is the result of, and an incident to, the dissolution of the corporate body. It is to be performed by the court, through the medium of receivers; and such receivers, when appointed, are the officers of the court, and subject to its direction and control. When, therefore, the court has in one proceeding brought for the dissolution of the corporation acquired jurisdiction over the fund, and has appointed its officers to take possession thereof and administer upon it, it is difficult to see how the order of another and co-ordinate branch of the same court is to be upheld, which seeks merely to take the fund out of the hands of one set of receivers, and place it in the possession of another set. The supreme court is a single tribunal, existing for the purpose of administering the law throughout the state. It performs its functions through many judges, in different parts of the state; but its orders, whenever made, are the orders of the court, and are to be respected and enforced as such in all parts of the state, and by all branches of the same court. In this action it was made apparent to the court at special term that receivers had already been appointed of the defendant corporation, and that they had qualified as such, and given the security required of them. They thereby became entitled to the possession of the corporate assets. Upon the view of the law entertained by the learned judge who heard the motion, he was probably permitted to ignore Judge Pryor’s order. If that order had been granted by a judge who had no jurisdiction over the corporation or its assets, it had, of course, no binding force anywhere. But, as we have shown, the learned judge fell into an error in this respect. There was jurisdiction to grant that order, and the assets of the corporation were at the time the motion for receivers was made in this action, in legal contemplation, in the control of the court, and the receivers appointed by Justice Pryor were entitled to the possession- thereof. Should receivers be appointed in this action, the legal relation of the court to the fund would not thereby be in the slightest degree changed. It would Still be in the possession and control of the court. All that would be accomplished would be to displace one set of receivers and substitute another. Ho step can be taken in the voluntary proceedings except upon due notice to the attorney general. The duties imposed upon him in reference to the administration of the fund are authorized mainly for the protection of the stockholders and creditors, and are precisely the same in one proceeding as in the other. The interests of all parties are therefore amply protected, and no public or private interests demand any further order by the court in this action. If the receivers appointed by Justice Pryor are for any reason objectionable, application may be made to the court for their removal. The fund is now in the possession and control of the court, and no further order or judgment is at the present time necessary to enable it to decree its proper distribution among those entitled to it.

' Judgment may be entered in this action for the dissolution of the corporate body. But the corporate assets must be distributed through the voluntary proceeding where jurisdiction .first attached. The order appointing receivers must therefore be reversed, with $10 costs and disbursements, and the motion denied with $10 costs.

All concur.


author: INGRAHAM, J.

text:
    David L. Einstein v. General Electric Co. et al.

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Depositions—Open Commission—Affidavit.
    An affidavit for an open commission does not show that the exammination of any witness named is material for either party on the trial of any issue of fact (Code Civ. Proc. § 894), where it alleges that plaintiff will be put to proof of the main facts alleged in the complaint, compelled to prove them by the books of certain corporations, and by the testimony of the past and present officers and agents of such corporations ; that plaintiff does not know the names of the persons who formerly had, or now have, the custody of such books and papers, and that he desires to examine all the individual defendants, and all the agents and officers of one of the corporations ; that the testimony desired to be taken is material to plaintiff in the prosecution of the action, -but that he is ignorant of many of the details relating to the facts alleged in the complaint, without which he could not frame interrogatories sufficiently comprehensive to procure the information required to prove the facts in the case.
    Appeal from special term, New York County.
    Action by David L. Einstein against the General Electric-Company et al. From an order directing that an open commission issue to examine various individuals, residents of Cleveland, Ohio, defendant, the General Electric Company appeals.
    Eugene H. Lewis, for appellant; George W. Seligman, for respondent.
   INGRAHAM, J.

—The order appealed from directed that-an open commission issue to examine on oath any witness who may be produced before the commissioner by either plaintiff or the defendant General Electric Company on or before the 20th day of November, 1896, at a time and place within the city of Cleveland, Ohio, to he specified on written notice by either of said parties to the other, upon oral questions to be put to the witness thus produced under the issues in the action ; the order limiting the witnesses to be called to the individual defendants residing in Cleveland, Ohio, and the present and past officers, agents, and servants of the defendant General Electric Company, of the Swan Lamp-Manufacturing Company, or of the Brush Electric Company of Cleveland, Ohio; the order then limiting the examination in certain particulars. We think this order was entirely unauthorized. The action is brought to recover $25,000 damages sustained • by the plaintiff-as a stockholder of the Swan Lamp-Manufacturing Company; it being claimed that by reason of the above wrongful acts complained of, on the part of the General Electric Company and of the Swan Lamp-Manufacturing Company and its officers and directors, the business of said Swan Lamp-Manufacturing Company was entirely and definitely stopped, and its property and rights were entirely absorbed by the General Electric Company.” The order was granted upon the pleadings, and the affidavit of the plaintiff’s attorney, setting forth the ownership of the plaintiff in the stock of the Swan Lamp-Manufacturing Company, the various acts under which the General Electric Company was organized, thé purchase of the stock of the.Swan Lamp-Manufacturing Company by the General Electric Company, except the stock belonging to the plaintiff, .and various acts of the defendants by which it is claimed that the stock of. the plaintiff was rendered worthless. The affidavit then alleges that the plaintiff will be necessarily put to the proof of the main facts alleged in the complaint, compelled to prove the same by the books of record, the minute books, and other books of said Swan Lamp-Manufacturing Company and of the Brush Electric Company of Cleveland, Ohio, and also of the testimony of the past and present officers, agents, and servants of the General Electric Company, of the Swan Lamp-Manufacturing Companjq and of the Brush Electric Company of Cleveland, Ohio, residing in Cleveland, Ohio. The deponent then says, on information and belief, that plaintiff does not know the names of the persons who formerly had or now have the control and custody of, the said books and papers, and that he desires to examine all the-individual defendants residing in Cleveland, Ohio, and all the other servants, agents, officers, or persons otherwise under the control of the said General Electric Company ; that the testimony desired to be taken is material to the plaintiff in the prosecution of the suit, but that he is ignorant of many of the details relating to the facts alleged in the complaint, ivithout which he (the deponent) could not frame interrogatories sufficiently comprehensive to procure the information required to prove the facts in the case ; and that the plaintiff is absent in Europe, and that is why he does not make the affidavit. It seems to us that this affidavit is entirely insufficient to justify the issuance of any commission. By section 881 of the Code it is provided that:

“ Where it appears, by affidavit, on the application of either party, that the testimony of one or more witnesses, not within the state, is material to the applicant a commission may be issued, to one or more competent persons, named therein, authorizing them, or any one of them, to examine the witness or witnesses named therein, under oath, upon the interrogatories annexed to the commission.”

And by section 891 it is provided that, where an issue of fact is joined in an action pending in the supreme court and other courts, the court to which an application for a commission is made may, in its discretion, upon satisfactory proof by affidavit that one or more witnesses, not within the state, are-material and necessary in the prosecution or defense of the action, make an order, upon such terms as he deems proper, directing that an open commission issue. To justify the issuance of an open commission in any case, it must appear that the testimony of the witness whose examination is sought is material to some issue joined in the action, and the necessity of a commission must appear. We think the affidavit in this, case fails to show that the examination of any witness named is material to either party upon the trial of any issue of fact. ¡No particular witness is named who can testify to any fact which is material.. The plaintiff’s attorney who makes the affidavit says that he does not know the name of any witness. who can testify. What he Avants to do is to get an order under which he can subpoena such persons as he pleases in Cincinnati, examine them to ascertain Avhetker or not they Avill testify to any facts which he thinks will aid the cause of action, and thus, by someAvkat of a fishing examination, at the expense of the defendants, see if the facts exist which would give him a cause of action. We do not think that such an object can be accomplished by the issuance of an open commission. As Avas said by Yan Brunt, P. J., in delivering the opinion of the general term of the supreme court in Lentilhon v. Bacon, 20 N. Y. Supp. 488 :

“ It is the Avell-settled rule that an open commission should never be granted, except under peculiar circumstances, and certainly not upon the motion of the plaintiff, without the ■strongest and most convincing reasons, as the granting of such ■a motion upon behalf of the plaintiff Avould simply be transferring the trial of the cause to a jurisdiction different from "that in which he has seen fit to place the venue.”

The order appealed from should be reversed, Avitk $10 costs .and disbursements, and the motion denied, Avith $10 costs.

All concur.


text:
    David Ackerman et al. v. Trustees of New York and Brooklyn Bridge.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Landlord and tenant—Lease from trustees—Notice.
    A lessee, from the trustees of the New York and Brooklyn Bridge, of a warehouse under the viaduct of the bridge; is chargeable with notice of the trustees’ duty imposed by statute (Laws 1891, o. 138) to improve the terminal facilities of the bridge, and he therefore cannot enjoin such improvements on the ground that his enjoyment of the leased premises will be interfered with, nor can he recover damages for interference with the premises caused by the building of the improvements.
    Appeal from special term.
    Action by David Ackerman and others against the trustees of the New York and Brooklyn Bridge for an injunction. The complaint was dismissed on the merits, and plaintiffs appeal.
    J. C. Rosenbaum, for appellants; W. N. Dykman, for respondents.
   PATTERSON, J.

—This action was brought to secure a permanent injunction to restrain the defendants from constructing and maintaining a platform or roadway which constituted a part of the improvement of the terminal facilities of the Nbav York and Brooklyn Bridge, and also to recover damages for depreciation in A'alue of the use of premises occupied by the plaintiffs under a lease from the defendants. The plaintiffs, as lessees, are in possession of a warehouse part of an abutment of the viaduct of the Brooklyn Bridge, and their premises are situated under one of the archways of that viaduct, fronting towards the south. The defendants executed the lease of the premises to the plaintiffs about January 1, 1893, who then entered into possession. About five months afterwards the defendants began the work of widening the viaduct, and, in order to accomplish that end, they deposited a large amount of material near the plaintiffs’ premises, which act, it is claimed, greatly obstructed the approach to them, and interfered with the use of such premises. In the widening or extension of the viaduct, the defendants made a construction, consisting of a platform, which the plaintiffs claim so materially interferes with the light of the premises that they are unable properly to carry on the business in which they are engaged, the conducting of which business constitutes the only use to which they can put the premises, under the terms and restrictions of the lease. The theory of the plaintiffs’ action, therefore, is that they are entitled to an injunction to restrain a nuisance, and to prevent continuing trespasses and the destruction or impairment of easements without compensation, and that they are also entitled to an award of damages, under the incidental jurisdiction of a court of equity to determine the whole controversy between the parties in one suit. The justice in the court below dismissed the complaint on the merits. An examination of the evidence discloses that the plaintiffs have failed to prove any such material obstruction to the easement of light, or any such impairment of light entering their premises, as would entitle them to an injunction, under any aspect of the case. But, further than that, the defendants have shown a state of facts fully justifying the decision of the court below. The lease to the plaintiffs was made to begin January 1, 1893. They entered into possession, and are still in possession. By chapter 128 of the Laws of 1891, the trustees of the Hew York and Brooklyn Bridge were empowered and required to improve the bridge terminals in Hew York and in Brooklyn, in order to accommodate the enormous traffic, for which the then existing facilities were entirely inadequate. The terminals referred to in that statute seem to include those portions of the bridge structure that are built and located upon land, and included the whole viaduct on either side of the river. Pursuant to the act of the legislature referred to, the bridge trustees adopted a plan for the improvement of the terminals, which plan included the widening of the viaduct; the only difference between the projected and the completed work being that the actual width is something less than that shown upon the plan as adopted. That plan was, in effect, adopted on January 20, 1891. So that it appears that, long before the lease to the plaintiffs, the defendants were compelled by law to improve the terminals in New York and Brooklyn; that the plan of such improvements, as recommended by expert engineers, was adopted ; and that such plan involved the widening of the viaduct by building an extension,, part of which would be above the warehouse which the plaintiffs subsequently (nearly two years) leased from the defendants. It therefore seems to be clear that the plaintiffs are not. entitled to an injunction on the ground of a nuisance. The improvement, in the way in which it was being constructed at the time this action was brought, was not only authorized 'by law, but the defendants were required by law to make it. The action cannot be maintained for an injunction, for a continuing trespass, and the taking of easements without compensations ; for, irrespective of any other question, the proofs, are insufficient to show, as matter of fact, the taking of siich easements, in the sense that would entitle the plaintiffs to-compensation for them. It is very doubtful, to say the least, whether the trustees had the power to make a lease which would interfere in any way with their duty to the public to-carry out the plan for widening the viaduct or improving the-terminals of the bridge, and it would seem that the plaintiffs-were bound to take notice of the situation and condition with reference to the trustees’ power at the time they entered into-the lease ; but it is unnecessary to pass upon those questions. Upon the fadts, a case is not made out for an injunction, and, as the equitable relief asked for was properly refused, the action cannot be maintained merely to recover damages for any inconvenience the plaintiffs may have suffered during the progress- of the work.

The judgment below was right, and should be affirmed, with costs.

All concur.