author: Per Curiam.

text:
    Jeremiah Enright, Resp’t, v. James M. Seymour, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1887.)

    1. Bill of particulars—Object and effect of.
    The object of a bill of a particulars is to apprise the party of the specific demand of his adversary, and its effect is to limit the testimony to the items contained in the bill and to prevent the introduction of proof of any matters not so contained.
    2. Practice—Amendment of pleadings—Not proper for the court to VOLUNTEER AMENDMENTS.
    The court must, upon application, allow a pleading to be amended at any time during the pendency of the action, even on appeal, if substantial justice will be promoted thereby, but it is not the duty of the justice, nor is it proper for him to volunteer to make amendments not moved for by either party.
    Appeal from a judgment rendered in the district court of the city of New York, for the Tenth judicial district, in favor of the plaintiff against the defendant.

      James C. Dehakean, for resp’t; Vanderpoel, Green and Cumming, for app’lt.
   Per Curiam.

This is one of three actions brought by plaintiff, who was a discharged horse trainer, or coachman, of defendant, to recover $250, $150, $35.00 repectively, “for money loaned and paid out at defendant’s request.”

They were all tried on the same day, and the last two resulted in a judgment for the defendant; while, in the first, the justice rendered judgment in plaintiff’s favor for the amount claimed, with costs; and from this judgment the appeal is taken.

The defendant, in due time, demanded a bill of particulars of the money claimed to have been “loaned and paid out” at his request; and one was given, stating it was for money paid “ to one John Purdue,” of Brick Church, N. J., to be paid by said Purdue to one Thomas Brogan, in settlement of a claim made by said Brogan against said defendant herein, for the value of cows, claimed by said Brogan to have been poisoned by defendant. This money was paid in June, 1884.

The evidence did not warrant any judgment for such a cause of action; a,nd this the justice who tried the case conceded.

The testimony, if it would justify any judgment against the defendant, established a cause of action for money paid by the plaintiff, at the request of defendant, to Purdue in settlement of criminal charges made by Brogan against the plaintiff jointly with others, including defendant’s son in November, 1883, not June, 1884.

It was for this latter cause of action that the justice rendered judgment, and not for the one sued on; this, notwithstanding the testimony, was properly objected to, and a motion for the dismissal of the complaint was made upon the express ground that the cause of action proved, if any, was not the cause of action sued on. This was denied; the justice saying that plaintiff might amend, but he did not ask for any amendment, nor was any made.

We think the bill of particulars must govern in this case, especially as it is the only written pleading, and we doubt whether, if the plaintiff should commence another action for the claim on which a recovery was allowed in this, the judgment in this action would be a bar to that.

The object of a bill of particulars is to apprise a party of the specific demand of his adversary. Drake v. Thayer, 5 Robt., 694.

Its effect is to limit the testimony to the items contained in the bill, and to prevent the introduction of proof of any matters not so contained. Kreiss v. Seligman, 8 Barb., 439.

It is true that a variance between an allegation in a pleading, and the proof must be disregarded as immaterial unless the court is satisfied that the adverse party has been, misled thereby to his prejudice. Code, § 2943.

The court must also, upon application, allow a pleading to be amended at any time during the pendency of the action, even on appeal, if substantial justice will be promoted thereby Code, § 2944.

But it is not the duty of the justice, nor is it proper for him to volunteer to make amendments not moved for by either party. Loyd v. Fox, 1 E. D. S., 101.

In this case, in view of the fact, that on the margin of the bill of particulars a memorandum that Purdue died before the date therein stated, and in November, 1883, and the evidence tending to establish the cause of action for which judgment was rendered, was, on the trial, carefully limited to a time before his death, apparently in accordance with this memorandum; and, in view of the further facts, that the money was claimed to have been paid to a dead man, the extraordinary nature of the claim, made about five years after the money was said to have been paid; the many contradictions and inconsistencies of plaintiff’s witness; and the further fact that the justice, in coming to a conclusion, seems to have been under the impression that he could not act upon his own judgment in weighing the evidence, but that he must decide in favor of the party having the most witnesses; and that apparently without sifting the evidence we do not think that substantial justice' would be promoted by allowing the amendment, now to be made, as we have a right to do under the ■Code, §§ 3063, 3213; but we think substantial justice will be best promoted by ordering a new trial.

Judgment reversed, new trial ordered, with costs of appeal to the appellant to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Lee, Resp’t, v. Edwin H. Price, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.)

    Practice—Appeal—When application to go to court op appeals ob POR RE-ARGUMENT DENIED.
    Where the testimony objected to on the trial could not have prejudiced the party excepting, the judgment below will not be disturbed, nor will leave to go to the court.of appeals or for re-argument be. granted on the exceptions taken to the admission of such testimony.
    An. application for leave to go to the court of appeals or for re-argument of an appeal from the judgment of general term of the city court affirming the judgment of the trial term.
    The grounds of the application were the exceptions taken to admission of evidence on the trial.

      Marshall P. Stafford, for resp’t; Abbott & Fuller, for app’lt.
   Per Curiam.

Applications of this character are of such frequent occurrence, that it seems unnecessary to reiterate what this court has decided in cases where parties ask for a re-argument or for leave to gó to the court of appeals. In Spofford v. Rowan (6 N. Y. St. Rep., 273) and Weil v. Eckstein (id., 298), we have expressed our views, and a repetition of them would appear to be unnecessary.

We have examined the various exceptions in the case, and in view of the charge of the judge in the court below, think that they were immaterial, or at least that the testimony objected to could not have prejudiced the defendant.

We are, therefore, of the opinion that the application should be denied.


author: Allen, J.

text:
    Neal McEnanny, Resp’t, v. James Kyle and others, impleaded with John Bannon, Appl’ts.

      New York Common Pleas, General Term,

      Filed June 6, 1887.)

    1. Master and servant—Duty op master—Liability for injury to SERVANT.
    The contract which the law implies does not make the master an insurer. of the servant's safety or the safety of the place in which he is to do his work. He is bound only to exercise ordinary and reasonable care, and if he has failed and in consequence of such failure the servant has been injured, he may recover of the master, provided he is without fault on his part and has not voluntarily and with knowledge of the danger assumed the risks or the consequences of his master’s negligence.
    3. Same—Duty of owner when he modifies contractor’s contract and THEY ARE OBEYING HIS DIRECTIONS.
    If an owner modifies in any respect his contract with those contracting to erect a building, so that in doing any particular act they are obeying the direction of the owner, if that act is negligent and dangerous and damage ensues, the owner is liable. In such a case it is his duty to see that what is done under his special orders is not negligently done.
    3. Same—Liability of owner when servant is injured through negligence OF CONTRACTOR.
    Where the plans and specifications of the building were approved by the building department and the building as it progressed was constructed to the satisfaction of the said department and the owner had selected contractors, competent and skillful, and up to the day of the accident, the work had been properly done, and one of the contractors overloads one of the floors and it falls and a person in the employ of the owner is injured,' the owner having no knowledge, and not participating in the particular acts through which the accident occurred, and he not having omitted to exercise proper care to discover it and having and exercising no control over the servants of the said contractor. Held, the owner cannot be held-liable for the injury.

      J. Noble Hayes, for resp’t; Boe & Mackin, for app’lts.
   Allen, J.

This is an appeal from a judgment in favor of the plaintiff against the defendant James Kyle, entered upon a verdict, and also from an order denying a motion for a new trial.

■ The action was brought to .recover damages for personal injuries. The defendants James, Robert and John M. Kyle were partners, engaged in business as builders and real estate agents, and the defendant John Bannon was a mason and contractor.

The defendants Kyle were the owners of the building No 232 East Forty-fifth street, in this city, which at the time of the accident to the plaintiff was in the process of construction and had progressed to about the fifth story, the front being partly up.

The defendant James Kyle prepared the plans and specifications of the building, and they were approved by the building department, and the defendant Bannon, by an agreement in writing, contracted to do the mason work according to the plans, in a workmanlike manner. The contract for the carpenter work was made with Watkins Brothers, who agreed to furnish and put up all the materials called for in the carpenter’s plans and specifications.

It was shown that the defendant Bannon was in good standing as a contractor and mason, and had been known to the defendant for seven or eight years, and that the carpenters were competent contractors, extensively engaged in business, and had been known to the defendant Kyle for about ten years. The defendant Kyle testified that he had full confidence in their doing the work.

The mason Bannon, for the purpose of raising brick te the upper floors for use in the building, had hired a hoisting machine, which was worked by men in his employ, and was in use on the 25th day of March, 1884, the day of the accident, for raising brick, mortar and stones to the fifth story.

On the morning of the 25th day of March, 1884, the defendant James Kyle employed the plaintiff to clear out some rubbish from the cellar. He had previously been in the employ of Bannon on this building, and was dismissed the day before the accident. About five o’clock in the afternoon of the 25th day of March, the plaintiff and a fellow workman were filling a barrow in the cellar, a few feet from the light shaft, near the westerly side of the building, when a mass of brick, stone and timber fell upon them, and the plaintiff was injured and his fellow workman killed. The carriage-way from the fifth story to the cellar was broken down between the trimmer beams on the west side of the well-hole.

Inspector Osborne, of the building department, who examined the building every day when it was in the process of erection, testified that he found nothing in the carpenter’s work to criticise or find fault with; that the work was properly done and the timbers properly supported.

About eleven o’clock on the morning of the accident, he visited the building and found about fifteen hundred brick or more on the beams of the fifth story, and a few stones, He told the men who were hoisting the brick and stones, in the presence of the foreman of the defendant Bannon, “not to overload the beams ; if they did, they would have them in the cellar.” He also testified that the cause of the accident was the overloading the fifth story with brick, and that he could account for it in no other way.

The witness Hines went upon the fifth story in the morning and saw the machine hoisting the brick, and the brick dumped alongside the "well-hole, and told the laborers that if they kept on that way they would break the house down. He went there also in the afternoon, and estimates, the number of the brick on the platform as between three or four thousand, weighing about three tons. He spoke to Bannon’s brother, who was the foreman, and said to him, “Don’t you pile too many brick here; if you do, you will have this broken down.” Bannon then said something about the expense of hoisting them, and then said: “We want to get rid of this hoisting machine, which costs us ten dollars a day. We want to get rid of it to-day, if we can hoist brick enough to put up our front.”

At the close of plaintiff’s case, and also at the close of all the testimony, the defendants Kyle moved to dismiss the complaint, on the ground that there was no evidence showing negligence on their part, or notice, or knowledge, or omission on the part of Bannon to properly perform his contract, and that it appeared from the evidence that the only authority Kyle had over the work was to see that the masons’ and carpenters’ work was done according to the contract.

The relation existing between the plaintiff and the defendant Kyle was that of master and servant. The duty of Kyle to the plaintiff as such master was to exercise ordinary and reasonable care in furnishing a safe and proper place in which to prosecute the work which he was engaged to perform, and competent fellow workmen.

The contract which the law implies between master and servant does not make the master an insurer of servant’s safety, or the safety of the place in which he is to do his work. He is bound only to the exercise of ordinary and reasonable care in that respect, and if the master has failed in his duty in this regard and in consequence of such failure the servant has been injured, he may recover of the master provided he is without fault on his part and has not voluntarily and with knowledge of the danger, assumed the risks or the consequences of his master’s negligence.

The defendant Kyle’s liability in this case to the plaintiffs depends, therefore, upon the decision of the question whether the defendant Kyle complied with Ms duty to the plaintiff in accordance with the principles of law above stated.

It is conceded that the accident which caused the plaintiff’s injuries, occurred from one of two causes: Either from insufficient support of the beams in the fifth story or from the extraordinary load of brick and stone which were placed upon these beams. It seems almost a certainty, as testified to by the inspector of the building department that the accident was caused solely by improperly overloading* the place near the edge of th carriage-way with brick and stone by the defendant Bannon and his workmen. As the accident was brought about in the manner above stated, the defendant Kyle’s liability must depend upon some negligence on his part connected with the cause of the accident as above stated. No other neglect or omission of duty is shown.

The defendant Bannon and the carpenters, Watkins cannot be deemed the servants of the defendant Kyle; they were independant contractors. The written contracts in evidence in the case show this. They were to do the brick work and the carpenter’s work of the house respectively, according to the plans and specifications and no right of control or direction of the work by the owner was reserved in the contract. They employed and discharged their own servants and represented their employer only as to the results. Kyle had the undoubted right to examine the building as the work progressed to see that proper materials were used, and that the work was done in accordance with the contracts. Bannon testifies that Kyle never directed the work to be done different from his contract. It seems plain enough from the testimony that there was no such interference with the contractors or such assuming control of the work as would establish the relation of master and servant; but even were it the fact, that Kyle did interfere with some parts of the work, he would only be liable for the injury which was traceable to his interference.

In Heffernan v. Benkard, 1 Robertson, 436, Judge Bosworth understood the rule laid down by the court of appeals to be this: “If an owner modifies in any respect his contract with those contracting to erect a building so that in doing any particular act they are obeying the direction of the owner, if that act is negligent and dangerous and damages ensues the owner is hable. In such a case it is his duty to see that what is done under his special orders is not negligently done.”

Now, under all these circumstances, has the plaintiff shown a failure of Kyle’s duty to him to furnish him a safe and proper place in which to work.

We have failed to find in the case any proof of negligence on the part of Kyle towards the plaintiff sufficient to carry the case to the jury, and we think the complaint should be dismissed as to the defendant Kyle.

The plans and specifications of the building in question were approved by the building department. The building had been, so far as it progressed, and was being constructed pursuant to such plans and to the satisfaction of the building department. An inspector of that department examined the work every day, and testified that both the carpenter work and the mason work were properly performed up to the day of the accident. Contractors well known as skillful and competent in their business, were selected to do the mason work and the carpenter work. Kyle had the right to place reliance upon the qualifications and good character of the contractors, and he was not bound to anticipate misconduct on their part; so that to make the defendant Kyle hable in this case some participation in or knowledge of the particular acts through which the accident occurred must be brought home to him, or some proof given that he omitted to exercise proper care to discover it.

According to the testimony the carpenter work of the building was properly constructed for the purpose for which it was intended. It was not built with reference to sustaining the weight of three tons of brick piled together on the edge of the carriage way. According to the testimony of the inspector, Kyle, Watkins and Hines, the cause of the accident was the excessive overloading of the fifth floor by Bannon, after having been warned by the inspector, Watkins and Hines. There is no evidence that Kyle had any knowledge whatever of this proceeding, nor is there any fact shown to have been brought to his attention from which constructive notice of Bannon’s conduct could be inferred. He was not upon the upper floor of the building at any time during the day the accident occurred. He was not at the building at the time the accident occurred. There is no proof which indicates that he had any knowledge that the hoisting machine was there, or that bricks or stone were being hoisted to the fifth story. The only testimony relied upon by the plaintiff in that respect is the'testimony of the plaintiff himself that he heard Kyle say to Bannon that there was no trouble with the coping stones, if they were going to put them up; they were all marked. There is no evidence even that' the coping stones were being raised at the time.

The judgment and order denying the motion for a new trial should be reversed and a new trial ordered, with costs to abide the event.


author: Bookstaver, J. Allen, J.

text:
    Hobart C. Fash, Resp’t, v. The East River Ferry Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.

    1. Practice—Verdict—When it will be set aside as against weight OF EVIDENCE
    The court will set aside a verdict on the ground that it is against the weight of evidence only in those cases where it is forced to the conclusion that unless it is done injustice will result, and that the verdict was the outcome of some misconception.
    2. Same.
    In an action against a ferry company for personal injury, winch had resulted in a verdict for the plaintiff, where the plaintiff himself was his only witness as to the way in which the accident occurred, and his testimony contradicts material allegations of his complaint, and is not clear or very satisfactory as to how the accident happened, and his account of what he was doing immediately preceding, and what happened immediately after the accident not being satisfactory, and his confusion of mind at the time not being satisfactorily explained, and being contradicted by several disinterested witnesses as to the circumstances of the accident, and he Having immediately alter the accident admitted it to be his fault. Held, that this is one of the few cases where the court would fail in its duty if it did not exercise the supervision over verdicts given it by law, and that the judgment should be reversed and new trial granted.
    Appeal from a judgment entered upon a verdict and from an order denying a new trial.

      N. J. and N. J. Waterberry, Jr., for resp’t: Rice & Bizur, for app’lt.
   Bookstaver, J.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

At the close of plaintiff’s case defendant moved to dis miss the complaint on the ground that plaintiff had not-shown that he was free from negligence; and also, because-the testimony showed his negligence contributed to the injury, which was denied, and defendant excepted.

When the testimony was closed on both sides, this motion was renewed on the foregoing grounds; and on the further-ground that there was no proof of any negligence on the part of the defendant, which was denied, and defendant, excepted.

On the coming in of the verdict the defendant also, moved for a new trial, on the judge’s minutes, on the exceptions taken during the trial, and on the grounds that the verdict was against the evidence and the weight of evidence, and that the damages were excessive, which was denied.

These motions bring up for review the entire evidence,, and accordingly we have gone over it with much care.

The only witness for the plaintiff as to the accident, and the way in which it occurred, was the plaintiff himself. His testimony, as to how the accident happened, is not at. all clear; nor is it very satisfactory.

The plaintiff testified that about eight o’clock in the evening of the 11th of March, 1885, he crossed from Thirty-fourth street, New York, to Hunter’s Point on one of the .defendant’s ferryboats. While crossing he sat in the ladies’' cabin. When the boat reached the slip, he left the cabin and crossed over to the gentleman’s side and attempted to-get off the boat. At that time it appeared to be securely fastened, and the chain at the bow was down. Several persons had been standing in the passage-way for carriages. These were some feet ahead of him, and he did not notice-whether they jumped off or stepped over. There were no persons immediately in front of him in the foot passenger way. As he walked, he looked and everything appeared to be safe. The night was dark; the lights on the boat and bridge were insufficient and dim; so that he failed to see there was a space of about fourteen inches between the boat and the bridge. In stepping off his foot went in this space, and his leg just below the knee was injured.

He also testified that after the accident the defendants had put up additional lights, but on cross-examination he could neither tell where the additional fights were placed, nor where the old ones were.

In his complaint he alleged that as he was “walking slowly and prudently in the crowd of passengers going off from the boat, and going therefrom to the wharf or landing place he stepped between the boat and the wharf or landing place, and his right leg was injured and crushed between the boat and wharf or landing place; ” “that the wharf or landing place was so dimly and insufficiently lighted by the defendant that the plaintiff could not see that the boat was not fastened to it.” This statement in his complaint, which was sworn to within three months of the accident, is not only at variance with his testimony as given on the trial, but is contradictory of it.

In his complaint he alleges that he went off the boat in a crowd, leaving it to be inferred that, for that reason, as well as for the insufficient fighting, he did not see the open space; while, on the trial, he testified that he was entirely alone while attempting to get off the boat. In his complaint he claims that his leg was crushed between the boat and bridge, while the testimony on the trial shows that it was not at all crushed, but that what injury he received was caused entirely by the front part of his leg coming in contact with some hard substance—probably the bridge.

His account of what ne was doing in the four hours preceding the accident is not at all satisfactory. He says that on the day of the accident he left his business about four o’clock in the afternoon; that he walked up town with James Bleecker, and parted with him on the corner of Fifty-eighth or Fifty-ninth street and Fourth avenue, about six o’clock in the afternoon; that he went to the 7th Regiment Armory, which is at the corner of Sixty-sixth street and Fourth avenue, where he staid not more than fifteen minutes; that he waited there for his first sergeant, whom he did not see; that he did not see any one there whom he knew; and that from there he went to the Thirty-fourth street ferry. It does not appear that he had any appointment with his sergeant at that time or place; and, without having such an appointment, it is difficult to understand why he should expect to meet him at the hour he was there.

Again, his account of whao happened immediately after, the accident is equally unsatisfactory; although it does not appear that the nature of the injury was sufficient to cause the confusion of mind under which he manifestly labored at that time. He says that he could not recollect anything that happened at the time of the accident, nor whether he lay on the floor or on a bench in the waiting-room, nor could he recollect anything that he said on that night, either in the waiting-room or carriage.

Prom the evidence, it is manifest that at the time of the accident the boat was not fastened to the bridge at all.

The evidence of all the defendant’s witnesses is to the effect that, at the time the boat was coming into the slip, and before it had struck the bridge, the plaintiff was leaning on one of the stanchions directly in front of the chain. John L. H. Hosier, an entirely disinterested witness, says* “The first place at which I am positive I saw Fash, he was leaning against the stanchion, the right stanchion, to which the chain fashioned, on the right hand side of the boat * * * I should say the boat was from twelve to fifteen feet from the bridge when I first noticed him. The bow of the boat was in the slip, and the port side struck the rack after I had seen him.”

The testimony of Mr. Flynn, another disinterested witness, corroborates Mr. Hosier, and is substantially to the same effect, as is also the testimony of William H. West-fall, a deck hand in the employ of the defendants. All the witnesses testify that at the time of the accident the boat was at least fourteen inches from the bridge; that it was backed immediately, and that it did not come any nearer the bridge till after the accident was over. This shows that the boat could not have been fast at the time, or it could not have backed; and also that the leg was not crushed. There is an entire absence of proof that the chain was let down by any employee of the company, while Westfall testifies that the plaintiff himself let down the chain, after it had been put up by him.

As against the plaintiff’s testimony, that the bridge was insufficiently lighted, the defendants proved by five witnesses, three of whom , were entirely disinterested, that there were lamps burning at the time, and that they cast a clear light over the whole bridge, so that they had no difficulty whatever in seeing clearly the place where the boat and bridge met.

Mr. Flynn testified that “ the light was shining on the bridge, and on the end of the boat also, so that anybody could see who had any eyes at all.” At least three witnesses testified that there had been no change whatever in the lights on the bridge or boat since the accident, and it nowhere appears in the case that any similar accident, or accident of any kind, has occurred at that place by reason of the insufficient lighting of the boat or bridge, although thousands of persons must have crossed under similar circumstances.

Westfall testified that while being taken home in a carriage, plaintiff frequently said that it was his own fault in jumping off the boat, and does not deny this explicitly, but says he has no recollection on the subject.

Two of defendant’s witnesses testify as the cause of the confusion of plaintiff’s mind at the time, one of whom was the physician who first attended him. But, as this was disputed by plaintiff and other witnesses on his behalf, we do not lay great stress upon it in arriving at the conclusion to which we have come.

It is always with the greatest reluctance that a court will disturb the verdict of a jury, on the ground that it is against the weight of evidence; and it will do so only in those cases where it is forced to the conclusion that unless it is done injustice will result, and that the verdict was the outcome of some misconception. But when it has arrived at- such a conclusion, it would fail in its duty if it did not exercise the supervision over verdicts given it by law. Clark v. Mechanic’s National Bank, 8 Daly, 481; McCarthy v. Christopher & Tenth Street Ferry, 10 id., 540; Seibert v.Erie Railway Co., 49 Barb., 586; Kinsley v.Brooklyn Crosstown R. R. Co., 1 N. Y., State Rep., 560.

We think this is one of the few cases in which we should exercise that power. By doing so no right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration by another jury, and this, we think, should be done.

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

Daly, J., concurs.

Allen, J.

(Dissenting) The court below fully and clearly submitted to the jury the questions of fact on which they were to pass, and the rules of law applicable to the facts. There was evidence to sustain the verdict, and not, in my opinion, such weight of evidence otherwise as would authorize us to disturb it.

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


author: Larremore, Ch. J.

text:
    John F. McLaughlin and Mary McLaughlin, Resp’ts, v. Harriett E. Page, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.)

      Í. Statute—When an act does not repeal by implication a prior one.
    An act, general in its terms, will not be held to repeal by implication a prior act, special in its terms and relating to a particular locality.

      3 New York (City or)—Mechanic's lien—Act of 1875, chap. 879, not REPEALED BY ACT OR 1880, CHAP. 486.
    The only mechanic’s lien law in force in the city of New York on the 31st day of September, 1883, was chapter 379, laws 1875. The mechanic’s lien law of 1875, chapter 379, for the city of New York was not repealed by the lien law of 1880, chapter 486, for the cities of the state and a notice of lien not complying with the requirements of such act is void.
    3. Same—Consolidation act 1883 — Notice or lien filed under prior to march, 1883.
    The consolidation act of 1883, by its terms, was not to take effect until March 1, 1883, and a notice conforming thereto, filed in September, 1883, could not create a valid lien thereunder. The object of the legislature in providing that the said act was to be deemed to have been enacted on the 1st day of January, 1883, was to express its intention as to the effect of the act upon other acts and other acts upon it, passed at the same session.

      William B. Blackie, for resp’ts; A. R. Page, for app’lt.
   Larremore, Ch. J.

This is an action to foreclose a mechanic’s lien. The appellant raises several objections to the conclusions of fact and those of law found by the learned referee. But it will be unnecessary to refer to all of them, as the single error of law, hereinafter considered, goes to the root of the controversy in its present shape, and is fatal to the judgment entered in plaintiff’s favor.

The paper claimed to be a valid notice of lien was filed in the office of the clerk of the city and county of New York on the 21st day of September, 1882. It is conceded that this notice did not conform to the technical requirements of the Mechanic’s lien Law of 1815 (Laws 1815, chap. 319); but that it did conform to the provisions of General Mechanic’s lién Law of 1880 (Laws 1880, chap. 486); and also to the provisions of that portion of the so-called consolidation act, which regulates mechanic’s liens. Laws 1882, chap. 410, §§ 1801-1823. The referee has held that by filing a notice framed as aforesaid the plaintiff acquired a valid lien. In this, I think, he erred; and I agree with the learned counsel for appellant in his contention that the only mechanic’s lien law in force on the 21st day of September, 1882, was the said chapter 319 of the Laws of 1815.

This act of 1815 was special in its character, and, by its terms, applied exclusively to the city of New York. The succeeding act of 1880 was general in its terms and applied to all the cities of the state of New York, except the city of Buffalo. In the case of McKenna v. Edmondstone (91 N. Y., 231; affirming 10 Daly, 410), the court of appeals held that the said act of 1880 did not repeal the said act of 1815, but left the same in force. The decision went on the ground that “it is well settled that a special and local statute for a particular case or class of cases is not repealed by a subsequent statute, general in its terms, provision and application, unless the intent to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases in the special law. * * * The statute of 1875 related exclusively to the city and county of New York. The statute of 1880 relates to the cities of the state, and while the city of New York, in the absence of any other statute upon the subject of mechanic’s lien, would be deemed included within its purview, that alone is not sufficient to indicate an intention on the part of the legislature to repeal the act of 1875.”

According to my understanding of this decision, the ground, upon which it was placed, was that an act, general in its terms, would not be held to repeal, by implication, a prior act, special in its terms and relating to a particular locality. In other words, the court of appeals decided that the act of 1880 did not apply to the city of New York, because such city already had its own special act which continued in force. Therefore, with all due deference to the opinion of the general term of the supreme court in this department (Cockerill v. Loonam, 36 Hun, 353), I am unable to agree with them in the decision that at the time in question both statutes were in force as far. as the city of New York was concerned, and that a claimant might acquire a valid lien by following the provisions of either act The .only reason for holding the act of 1875 to be unrepealed by the act of 1880, was that it applied to a special locality; and it seems to me to follow, irresistibly, from this consideration that the only way of acquiring a lien in such locality was by following its peculiar law. The converse of the principle laid down by the court of appeals in Heckman v. Pinkney (81 N. Y., 217), would seem to apply in the present case. It is there said, that “where a later statute, not purporting to amend a former one, covers the whole subject, and was plainly intended to furnish the only law on the subject, the former statute must be held repealed by necessary implication.” If the act of 1880 should be held to apply to the city of New York, it would necessarily, and just as clearly as in the instance discussed in Heckman v. Pinkney, “cover the whole subject and furnish the only law on the subject. ”

It offered a complete system, both of law and practice, on the subject of mechanic's lien and under the doctrine of Heckman v. Pinkney, if it had had any application to such locality, it must have become the exclusive provision therefor In holding, therefore, that the law of 1880 did not repeal, by implication the law of 1875, because the latter referred to a special locality, the court necessarily held that said law of 1880 had no application whatsoever to such locality. The general term of the superior court of the city of New York has arrived at the same conclusion. Keogh v. Main, 17 J. & S., 183.

But the respondent claims that as the notice of hen in. question conformed with the requirements of the so-called, consolidation act of 1882, a valid hen was thereby established. The notice of lien was filed September 21, 1882, and the consolidation act by its terms provides that the act shall not take effect until the 1st day of March, 1883. The respondent’s argument, therefore, is probably based upon the following provision in such consolidation act: “For the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the first day of January, 1882; all acts passed after such date and the Penal Code are to have the same effect as if passed after this act.

I cannot agree with the learned counsel for the respondent in this contention. According to the terms of the act itself, it was not to take effect until several months after the filing of this lien, and in view of this provision it is immaterial when it shall be “deemed to have been enacted. ” I am disposed to acquiesce in the theory of construction suggested by the counsel for the appellant that the object of the legislature in providing when said act was to be ‘ ‘deemed to have been enacted,” was to express its intention as to the effect of this act upon other acts, and other acts upon it, passed, at the same session. It is easy to see that many questions of construction, not necessary to be specified here, might, have arisen under the various statutes passed at such session. Certainly, according to the usual acceptation of language, not the date upon which an act is “deemed to have been enacted,” but the date upon which it takes effect, is. the time when it becomes operative and after which its provisions must be obeyed.

I am, therefore, of opinion that in regard to mechanic’s liens, the act of 1875, was the law, and the only law in and for the city of New York at the time in question; and as the notice of lien filled by the plaintiffs confessedly did not-comply with the requirements of such act, such notice was void, and the judgment appealed from should be reversed, and a new trial ordered, costs to abide the event.

Allen, J., concurs.


text:
    Oscar Baumann, App’lt, v. Mary G. Pinkney, Resp’t.

      (New York Court of Common Pleas, General Term,

      Filed June 6, 1887.)

    1. Contract—Construction or—Performance—Time of the essence OF THE CONTRACT.
    Where, in a contract for the sale of land, a specific date was mentioned for the performance of the mutual and dependent covenants, and there was a clause forfeiting the amount paid on account of the purchase money if the vendee failed to complete the purchase at the time and place fixed, and an express notice had been given at the time of executing the contract that prompt, performance on that date would be demanded, and a further notice was given to the attorney for the vendee that such notice had been given at the time the contract, was made, and the attorney for the vendor had refused to extend the contract two or three days, held, that the time for its performance was made of the essence of the contract.
    2. Same—What required of party seeking to put other party in DEFAULT.
    A party may be held to a strict performance of . a contract as to time and put in default for non-performance; but to do this the party seeking to put the other in default must not only be ready and willing to perform, but must tender performance at the time, and demand performance from the other.
    The defendant was at the time of the commencement of this action the owner of a plot of land lying between One hundred and thirty-seventh and One hundred and thirty-eighth streets, and Eighth and New avenues, in the city of New York. On or about the 22d day of June, 1886, an instrument in writing was executed between the parties, in and by which the defendant agreed to sell such real estate to plaintiff for the sum of $126,000. It was provided in such instrument that $2,000 of said consideration should be paid at the time of the signing of the contract, and the remainder, to wit, $124,000, on the first day of September, 1886, at the office of John 0. Shaw, Esq., 79 Cedar street, in the city of New York, at which time and place the deed to said premises was to be delivered.
    On or about the 24th day of August, 1886, Julius Lip-man, Esq., who had theretofore been retained by plaintiff to search the title, applied to Mr. Shaw, the attorney, for information with regard to the title; and Mr. Shaw at that time informed Mr. Lipman that a prompt performance of the contract, at the time therein mentioned, would be demanded. A similar notice that a prompt performance of the contract1 would be enforced had been given to the plaintiff at the time the contract was made.
    A few days before the first day of September, the said attorney for the plaintiff made an application to said attorney for the defendant to grant an extension of time for the purpose of completing searches. This application was denied, defendant’s attorney at that time reiterating that his chent would require a completion of the contract upon the day fixed. The said attorney for defendant did, however, offer, at the time of such application by plaintiff’s attorney, to extend the time (according to his own version for thirty days; according to the plaintiff’s attorney’s version for sixty days), provided the plaintiff would pay $10,-000 down on the first of September, 1886, and increase the contract price to $133,000; or, if the plaintiff would pay $20,000 in cash'on the first of September, and increase the contract price to $131,000. This option was not then accepted; but it was understood between the parties that the same should be open for the plaintiff’s election when they should meet on the first day of September.
    On the first day of September, 1886, the plaintiff’s attorney, and one M. Bauer, went to the placed named in the original contract of sale, and there met the defendant’s attorney, and her general agent Mr. Curtis B. Pierce. Defendant’s attorney tendered a deed of the premises in question and demanded the balance of the purchase money, which was refused. Plaintiff was, at that time, also given an opportunity to exercise bis election under the aforesaid option for an extension of the time for the completion of the contract of sale, upon the payment by him of either of the sums of money referred to in said option. But plaintiff refused at that time to pay any sum of money, alleging as a reason therefor, that there was no person present competent to legally execute the proposed extension of the original contract on behalf of defendant.
    This action is brought for the specific performance of a contract to sell such real estate. Upon the trial a judgment was entered dismissing the complaint, and from such judgment this appeal is taken.

      Benno Loewy, for app’lt; John C. Shaw, for resp’t.
   Larremore, Ch. J.

The opinion of the learned judge before whom this case was tried contains the following-language:

“ In this contract the time ror its performance was made of the essence of the contract. First, by the specific date mentioned in the contract for the performance of the mutual and dependent covenants of the parties thereto; second, by a clause in the contract forfeiting the $2,000 paid on account of the purchase money if the plaintiff failed to complete the purchase at the time and place fixed by the contract; third, by express notice given at the time of executing the contract, that prompt performance, of the contract on that date would be demanded; fourth, by notice given to Mr. Lipman that such notice had been given at the time the contract was made, and by the refusal of Mr. Shaw to extend the contract even for two or three days. ”

' The learned judge might, with propriety, have gone even further and said that, all possible doubt as to whether time was made of the essence of the contract was removed by the acquiescence of the parties and the action of the plaintiff upon the basis that time would be considered of the essence of the contract.

It is testified by plaintiff’s former attorney that he attended at Mr. Shaw’s office on September 1st, prepared to pay §10,000 down upon a new contract then expected to be executed at an increase purchase price for the property. If this be true, plaintiff must have, at that time, acquiesced in defendant’s claim that time was of the essence of the original contract, and in defendant’s election to consider the original contract forfeited by reason of its not having been performed by plaintiff upon the day named.

In the case of Hubbell v. Von Schoening (49 N. Y., 326), it is held that in regard to real estate contracts “a party may be held to strict performance as to time, and put in default for non-performance; but, to do this, the party seeking to put the other in default must not only be ready and willing to perform, but must tender performance at the time, and demand performance from the other, and then whether equity will relieve will depend upon the circumstances Each case must be judged by its own circumstances.”

In Babcock v. Emrich (64 How. Pr., 435), the general term of the supreme court in this department say: that Time is not usually of the essence of such contracts, but the parties can always make it so. In this case they had done it by an express stipulation, fixing place, day and hour and, by an adjournment to another day and hour, at the same place, to give the purchaser time to examine á specific objection.”

Under the facts and circumstances of the case at bar I have no doubt that defendant intended to make time of the essence of the contract, and the plaintiff thoroughly understood such intention from the start.

It is not inequitable for the court to sanction defendant’s election to terminate the contract because of its non-performance by the plaintiff on the day named. Plaintiff’s laches are entirely unexplained. For aught that appears he had abundant time to search the title and be ready to complete his purchase on the first day of September, 1886. I am of opinion that the learned judge at the special term properly held that time was of the essence of the original contract, and that such contract was rightfully annulled.

This conclusion virtually decided this case. The action is for the specific performance of a contract, and, according to my view, the only contract involved is the original written one of June 22, 1885, which, as before shown, was properly voided by defendant’s election for non-performance on the part of plaintiff. It cannot be claimed that the negotiations for an extension of time in which to take title to the property at an advanced price constituted a contract.'

According to plaintiff’s own showing an alternative proposition was submitted by Mr. Shaw, which was that the time for taking title should be extended, provided the plaintiff would pay $10,000 down on the first day of September and increase the contract price to $133,000, or provided that the plaintiff would pay $20,000 in cash on the first day of September and increase the contract price to $131,000. The plaintiff’s attorney himself admits that he did not accept either of these alternative offers, but the matter was left open for his client to accept when they should meet on the first day of September. The minds of the parties never met on this question of so-called extension. For, on the first of September, although plaintiff’s attorney was prepared and went with the intention of accepting one of such alternatives, yet, according to his testimony, he expressly refused to enter into any agreement at that time by reason of the want of authority in any person present to legally bind the defendant.

These negotiations with Mr. Shaw were in reality for a new contract, and it is immaterial whether or not it was intended that the same should be called an extinction of the old contract, or that the element of interest on the original price should enter as part of the new consideration.

Defendant’s legal position was this: Her attorney was informed prior to the first of September that the plaintiff would not complete his original contract on that day, and notice was then given that in such event defendant would elect to terminate such original contract. Her attorney also said that offers had been made for the same property at an enhanced price, and that defendant would sell the property to plaintiff at an enhanced price under certain alternative conditions, which it was understood were to be agreed upon when the parties came together on September first. There was offered to plaintiff an option in regard to the amount and manner of payment of the consideration for a new contract, which option both parties understood should be open to the plaintiff until September first, when he was to make his election. The only understanding that can be said to have existed prior to September first was that a definite agrément should be made on that day when the plaintiff should exercise such option and the result of the negotiations be reduced to writing and signed by the parties. But on September first, according to his own showing, plaintiff refused to refuse the proposed new contract on account of alleged want of authority in the persons representing the defendant. The question whether or not the defendant’s attorney or her general agent had authority to legally bind her by the contract they offered to sign, is immaterial because no contract of any sort was executed. Nowhere does it appear that the minds of the parties met upon a new arrangement to take effect September first, whether the same was to have been called a new contract, or a modification or extension of the old one. The fact that plaintiff may have had the best of reasons for not closing the contract does not help him in an action to enforce such contract. If no contract is shown to be in existence an action for specific performance is an anomaly on its face.

Perhaps plaintiff may claim that the fact that defendant was not present at Mr. Shaw’s office on September first and not represented there by an attorney in fact, having unquestioned power to bind her by instrument under seal, operated to reinstate the original contract, which by its terms and her election had expired. I know of no principle which will support such claim. On the contrary, plaintiff is in precisely the same condition legally as if on the first day of September, when he failed to perform, defendant had elected absolutely to terminate all relations with plaintiff, and refused to entertain negotions with him for an extension of time to take title on any terms.

For the reason, therefore, that it does not appear that there is any valid contract in existence to be enforced, this action for specific performance must fail and the judgment should be affirmed, with costs.

Daly and Allen, JJ., concur.


text:
    Amala Englert, Resp’t, v Herman Kruse, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.)

    1. Practice—Trial by jury—Evidence—Admissibility op.
    Evidence clearly irrelevant and improper, or that which would have a tendency to excite the passion, arouse prejudices, awake the sympathies or warp or influence the judgment of the jurors in any degree, cannot be considered harmless. Jury trials should be strictly confined to the issues made and the legitimate facts bearing upon them.
    2. Same—Objection to evidence, when not necessary to repeat.
    Where the second objection was in effect a mere repetition of the first, and the court had ruled on it, it was unnecessary to repeat the objection.
    Appeal from a judgment entered on the verdict of a jury and from an order denying a new trial.

      Jacob Marks, for resp’t; Jerrolomar & Arrowsmith, for app’lt.
   Per Curiam.

This action was brought by the plaintiff to recover damages for personal injuries received by her in consequence of slipping and falling while descending the stairs in the defendant’s premises.

Two of the banisters on the stairs were missing, but it is not claimed that plaintiff slipped because of the absence of the banisters; only that her injuries were caused or aggravated by reason of her foot slipping in the vacant space.

On the trial, defendant was a witness, and on his cross-examination he was asked, “Is this the only tenement property that you own ? ”

Defendant objected to the question, but the objection was overruled and he excepted.

The question was then repeated in substance, and he answered, “Yes, sir.”

He was then asked , “What else ? ” and his answer was, “ Two little things; a two story and one four story.” And then followed other questions tending to show that defendant was a man of'-some means and not in business.

We think this evidences was entirely inadmissible, and was clearly to defendant’s prejudice.

In Myers v. Malcolm (6 Hill, 292), the court, by Nelson, Oh. J., says: “But a new trial in this case must be granted for the error committed by the judge in admitting evidence of the wealth of one of the defendants., This was clearly inadmissible, and it is impossible to say what effect it may have had upon the verdict; nor is it important to inquire, as this is a bill of exceptions-. The plaintiff was entitled to the damage he had sustained, and nothing more, without regard to the ability or poverty of the defendants. The admission of the evidence implied at least that the jury graduate their verdict, in some measure, by the means possessed by the defendants to satisfy it.”

In Hutchins v. Hutchins (98 N. Y., 57, 65), Rapallo, J., says: “The evidence as to the wealth of Phineas was clearly irrelevant and improper, and cannot be said to have been harmless. Illegal evidence that would have a tendency to excite the passion, arouse the prejudices, awake the sympathies, or Warp or influence the judgment of the jurors, in any degree, cannot be considered harmless;” and quotes, with approval, á remark by Leonard, J., at general term, in that case, that ‘ ‘ nothing could be better fitted to direct the minds of the jury from the true issue, than a pathetic contrast between the widow of a rich brother and the poor defendant.”

Respondent now contends' that only the first question was objected to, and that no objection was made to the second; but we think that the second was a mere repetition of the first in effect, and as the court had already ruled on it, it was not necessary to repeat the objection; and so respondent seems to have thought when preparing his, brief, for he then treats it as if the exception had been repeated, and claims it was competent on cross-examination, but does not show how it was, while we think it had a, direct tendency to prejudice the minds of the jury, by strongly contrasting the poor injured woman and the rich and careless landlord.

We also think the objection and exception to the question asked of the plaintiff: “State whether or not the defendant stated to you that he had had some accident in the house, and that he ought to have it fixed, or in some other house?” Well taken.

The question was not confined to these stairs, nor even this house. The answer to the question left the jury to infer that the defendant had had just such an accident in his house before; that he had left his stairs in the condition the plaintiff testified they were, and that he was a careless and indifferent landlord and ought to be punished.

In the case of O'Hagan v. Dillon (76 N. Y., 172), a witness was asked : “Do you know anything about a party recovering a judgment of $5,000 before Judge Van Brunt?” and he answered, “I did hear from some parties outside-that there was such a thing;” and the court said : “ The-question itself had an injurious tendency, and the answer still mofe so ” The plaintiff should at least have disclaimed the answer and declined to receive it. Jury trials should, be strictly confined to the issues made, and to the legiti - mate facts bearing upon them; and the practice of dragging in extraneous matters to influence the jury cannot be too-strongly condemned.

As we think a new trial should be ordered, for these- . errors in admitting evidence, it is unnecessary to examine the other questions raised on this appeal.

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


text:
    Monroe L. Simon, Resp’t, v. The Aldine Publishing Company, App’lt

      (New York Common Pleas, General Term,

      Filed June 6, 1887.

    1. Contempt—Fictitious surety.
    Where one becomes surety, knowing that he is insolvent and with no-expectation of paying the liability thus incurred, he is guilty of contempt for procuring and putting in fictitious surety. Code Civ. Pro., § 14, subd. 2.
    2. Same—Power op court to punish surety not a party to the action.
    This court has power to punish a surety for contempt, although he is not a party to the action.
    This is an appeal from an order of the general term of the city court of New York adjudging the appellant, James-Sutton, guilty of contempt of court in becoming a fictitious-surety upon an undertaking given on an appeal to the genral term of this court from a judgment of the city court in favor of the plaintiff in the action of Simon against The Aldine Publishing Company.

      Thomas Darlington, for James Sutton, app’lt; Samuel Jones, of counsel; E. J. Myers, for resp’t.

       Affirming, S. C., ante, p. 334.

   Per Curiam.

The contempt charged against the appellant was that he caused and procured a fictitious surety to be put in in this action, to wit: “In that the said James Sutton executed on the 23d day of December, 1885, and filed and approved on the 7th day of January, 1886, an undertaking on appeal from the judgment rendered in this action and became a surety thereon, and thereafter justified thereon as a good and sufficient surety, being at the time wholly insufficient and irresponsible to answer the obligation of such undertaking, and false and untrue in the statements and allegations of his estate and property by him possessed and owned at such time.”

The court below found the offense to be proven, the learned judge at special term using the following language in his opinion:

“ The examination taken under proceedings supplementary to execution herein, before a referee, in which said surety as well as his co-surety and other witnesses testified, and the o additional affidavits submitted, satisfy me that some of the statements made by said surety (who was also the president of the defendant corporation) upon his justification as such surety were not true, and were known to him at the time to be untrue, and that he was then insolvent, with no present means of meeting the obligation into which he had entered as a surety, and with no intention of paying the same.” See 5 N. Y. State Rep., 906.

The general term below say, in their decision, “After a careful review of the facts we agree with the special term that the said surety on the undertaking referred to- was fictitious.” We concur in the finding of the court below sustaining the charge.

On his justification, January 7, 1886, Sutton testified that he owned presses and printing material at No. 40 Nassau street, worth $10,000, free and clear of any incumbrance; that he had no outstanding indebtedness further than three or for hundred dollars; that he was worth $5,000 over and above all debts and liabilities which he owed, or has incurred, and, exclusive of property, exempt by law from levy and sale under execution. He also testified, upon cross-examination, that he owned one-qúarter interest in his father’s estate, worth from $700 to $1,000, household furniture worth about $500; six or seven hundred shares of the stock of the Aldine Publishing Company to which he could assign no value, and a yacht, the value of which he could not give.

Notwithstanding the fact that he swore upon the justication that his total indebtedness did not exceed three or four hundred dollars, it appeared, upon his examination before the referee in supplemental proceedings, that he was indebted to his wife at that time upon a note made to her in 1883 for $20,000, and to his sister in the sum of $1,500 upon a note. According to his testimony all the property he owned in December, 1885, was the property he purchased from his wife, for which he gave her the note of $20,000, one-quarter interest in his father’s estate, worth $700 to $1,000; household furniture, worth about $500; stock of the Aldine Publishing Company, and a yacht.

Now Esther Sutton, his sister, swears positively that his interest in his father’s estate was sold to her before Christmas of 1885 for $1,500 in cash. As to the $500 worth of household furniture, he swears, in his examination, that he claimed an interest in the household furniture in January, 1886, to about the extent of $500; if he were the absolute owner of household furniture to the amount of $500, as he was a householder, a part of it would be exempt from levy and sale under execution. But this emamination shows that Mrs. Sutton also claimed the furniture, or a part.

The Aldine Publishing Company’s stock does not appear to have any value, and was held under an option under which it was afterwards surrendered. The yacht which he claimed to own was, according to the testimony of Charles Sutton, built by Mr. Platt for Mrs. Sutton pursuant to a contract with her, and paid for by her; and Charles Sutton testifies that the yacht belongs to his mother, and he never knew of his father having any interest or ownership on it; and James Sutton swears that Mrs. Sutton claimed that the had given it to the son Charles.

If Sutton was indebted to his wife at the date of the justification in the sum of $20,000 upon his note there could be no question as to his insolvency

The appellant sought to dispose of the liability upon this note in two ways: First, his wife in an affidavit submitted by her, says: “That in January, 1885, she bargained and agreed with said James Sutton for a valuable consideration to release and discharge said Sutton from all personal liability on account of said note or the debt which it represented; that she executed and delivered to said Sutton a writing to that effect and removed the woods, “value received,” form said note for the purpose of destroying its negotiability. The writing spoken of has not been produced and no reason given why it is not produced.

We are not compelled to say, as the proof stands, we do not think this claim is consistent with reasonable probability, and whatever it may have been at the examination, before the referee, we believe that Mr. Sutton at the time-of the^mstification, was indebted to his wife upon this note, if nq£JI the full amount of it, at least in a large sum.

Second. Mr. Sutton in his examination has repeatedly admitted an indebtedness to his wife upon this note, and acknowdedges that he owes her now on account of it $5,000 or $6,000, but he claims that he had reduced the note in December, 1885, by selling to his wife for $10,000, part of the property, which had been sold by her to him for $20,000, which $10,000 was credited on the $20,000 note. What property was sold to her does not appear, nor is the bill of sale which he says he gave to her, produced. But he has sworn in his examination that the value of all the property which he bought from her and for which he gave her the $20,000, was $10,000. Conceding this sale was made, there still remained due upon the note the sum of $10,000, and if it be true that Mrs. Sutton was indebted to him at the time of the justification in the sum of $2,769.43, as he claims, there would still be due upon the note at the time of the justification, the sum of $7,230.57 for this $2,000 bill of sale was made after the justification. This, together with the indebtedness to his sister is more than the value of the property he claimed to be the owner of at No. 40 Vesey street as shown by the prices received for it when he turned it over within two months after the justification in payment of notes of the Aldine Publishing Company which he was endorser.

We consider the case against Mr. Sutton made out, that, he became surety knowing that he was insolvent and with no expectation of paying the liability thus incurred.

This court has decided that the-power to punish a surety for contempt exists, although a he is not a party to the-action. Hull v. L'Eplatinier, 5 Daly, 534; Nathans v. Hope, 5 C. P. R., 401. The superior court has also so decided. Eagan v. Lynch, 3 C. P. R., 236.

The case of Nathans v. Hope went to the court of appeals, and was reversed there, not upon the question of power, but on the insufficiency of the proofs.

The learned judge at the special term, in his opinion, has. stated that it seemed to him that the principles laid down in Hull v. L'Eplatinier (supra), had been overruled by Moffatt v. Herrmann (17 Abb. N. C. 107). The cases referred to in no way affected or changed the doctrine of' Hull v. UEplatinier. On the agreement of the appeal in Moffatt v. Herrmann, we reversed the order appealed from for reasons that seemed to us so palpable that we thought a detailed statement of them in writing was unnecessary. The city court attempted to punish Herrmann for disposing of his property after Moffat had impleaded him in an action in that court.

It is true that the city court supposed that they were punishing Herrmann for contempt in putting in a sham answer, hut what was actually done was to convict Herrmann of disposing of his property pendente lite, and then to impose upon him a fine equal to the amount of Moffatt’s judgment.

Assuming—which we cannot concede—that the filing of a sham answer is a contempt of court, and that, the court could lawfully compel a defendant to compensate his adversary for the loss which he had suffered through the misconduct complained of, the question arises what is the loss that the interposing of a sham answer occasions? The answer is obvious; if the plaintiff be delayed, he loses the interest upon his demand for the period of the delay. If by his sham answer Hermann kept Moffatt out of his money, or cut of the judgment to which the latter was entitled, from the second to the twentieth of March, the law could and would give no other redress than to impose the lawful interest for that time. But it was alleged that Herrmann had done something more than delay Moffatt; he had taken advantage of that delay to place his property beyond the reach of an execution; and this was the act that the city court undertook to punish as a contempt of court.

Now when and where before did anybody ever hear that where a plaintiff brought an ordinary action on a promissory note, the defendant committed a contempt of court by parting with his property whilst the litigation was pending? Hermann’s disposal of his property was an .act distinct from and independent of the filing of his answer. It it be a contempt to file a sham answer, the offense is complete when the answer is interposed. If after the commission of that offense Herrmann went on to do another improper act, the city court assumed that the latter act must be a part of the offense that is to be punished as a contempt. Suppose that after gaining time by fifing a sham answer, Herrmann had succeeded in stealing the note in suit, or or that he had fraudulently disabled a witness for the plaintiff from attending or from testifying, would anyone contend that such conduct could be punished as part of the offense of interposing a sham answer?

But Herrman had, as it appears, sold his property before he filed his answer. The answer was interposed on the second day of March, and on the previous day (the first of March) he had conveyed his property to the Hirsh & Herrmann Brewing Company; he received in payment stock of the company of the par value of $100,000, and a large part of that stock he used in securing his creditors; the residue he gave as collateral security to his wife for an alleged debt of hers, the honesty of which the city court doubted. Exactly why the court entertained suspicions as to the bona jMes of the wife’s claim does not appear, but her rights could not be summarily disposed of on a motion to punish her husband for contempt. If her claim were honest, the singular spectacle would be presented of sending Herrmann to jail for contempt_ because he exercised the undoubted lawful right of applying his property to the securing of his creditors, when no injunction or receivership or order deprived him of the control of his affairs. And for this extraordinary order, the court had no other authority than the observation of an English judge, that perjury when committed in the presence of a court is a grave contempt.

It was always the rule that pleadings should be true. Chitty on PL, m. p. 541, et seq.; Stephen on PL, m. p. 441. But no one ever heard of treating the interposing of a sham answer as contempt. Subdivision 8 of § 14 of the Code did not therefore apply to the case; nor did subdivision 2 of that case apply, for that subdivision merely relates to “putting in fictitious bail or to any deceit or abuse of a mandate or proceedings of a court.” The word “proceedings” here means something issuing from the court itself. There was no ground upon which the order adjudging Herrmann guilty of contempt could be supported.

The order of the general term should be affirmed, with costs.


text:
    The People of the State of New York v, Catherine J. Fisher and ano.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.)

    1. Bail, fobfeitube of—Repayment of money paid on fobfeitube.
    A person having forfeited her bail by leaving the county, though after-wards returning and giving bail under the indictment found against her since the forfeiture, which is nolle pros’d, is not entitled to the return of the money paid on the forfeiture of the bail.
    An application to remit a forfeiture entered on an estreat of a bail-bond, and for restitution to the defendant of moneys paid on the forfeiture.

      Leo C. Dessar, for def’t, Fisher; Randolph B. Martine, district attorney.
   Per Curiam.

We fail to see any reason, either in law or equity, why this application should be granted.

Upon the arrest of the accused, she gave bail for her appearance, pending an examination, which she forfeited by leaving the county, and the money asked to be returned was paid on this forfeiture. It is true that after such payment she returned and gave bail under the indictment which had been found against her while she was a fugitive, and that this indictment was subsequently nolle pros'd; but that is no reason why the previous forfeiture should be remitted, as the fact of the payment of the $1,000 was probably taken into consideration, and the district attorney may well have regarded that as a reason moving to the nolle.


author: Larramore, Ch. J.

text:
    Warren A. Jacobson, Jr., Resp’t, v. Carrie M. Jacobson, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1887.)

    1. Divorce—Alimony pendente lite—Power of the court to discontinue.
    Alimony pendente lite is not a matter of strict right, but is an application addressed to sound discretion, and the court may on proper occasion refuse to grant alimony, and its discretionary power is not exhausted by the original grant or refusal, but it may, for good cause shown, discontinue or suspend alimony already allowed.
    2. Same—Order discontinuing—Where just and proper.
    Where in an action by a husband against his wife for an absolute divorce, the defendant's attorney, where her attendance was desired before the referee for the purpose of identification; declined to disclose her address, and the court refused to compel him to make such disclosure, an order discontinuing the alimony theretofore granted defendant, unless she consented to attend upon the trial, was a just and proper one.
    3. Same—Appearance for identification not testifying—Code Civ. Pro., § 831.
    Such order does not violate the provisions of section 831 of the Code of Civil Procedure as to competency of husband or wife as a witness against each other. A simple appearance for identification cannot be held to be testifying.
    This is an action for absolute divorce, and upon motion, there has been allowed to defendant a certain sum ot money for counsel fee and five dollars per week as alimony pendente lite. The trial of the case is now pending, being before a referee, and the plaintiff, after having introduced evidence which concerns a certain woman, desired to have defendant appear in person at the reference so that the witness may say whether or not she is the woman in question. The sole purpose for which her attendance is sought is identification.
    It appears that plaintiff has endeavored to subpoena defendant, but has been unable to do so or to discover her residence. Defendant’s attorney has declined to disclose her address and the court has refused to compel him to make such disclosure. Upon these facts an order has been granted discontinuing the alimony unless defendant will consent to attend on the trial; and" from such order the appeal is taken.

      James W. McElhinney, for app’lt; Thomas Vickery, for resp’t.
   Larramore, Ch. J.

We regard this order of the special term as a very just and proper one under the circumstances. The general rules with regard to alimony ad interim and ■counsel fee are well stated in Mr. Bishop’s work as follows: “On an adequate marriage, the wife’s needs, the faculties ■of the husband and the prima facie cause of action or defense appearing, the court will, ordinarily, but not necessarily, as of course, grant the allowance; proceeding herein upon the judicial discretion, as prompted by all the facts and surroundings. The ad interim alimony and money for the suit expenses are given not as strict right in the wife, but of sound discretion in the court. Yet the discretion is judicial, not arbitrary. When exercised fairly and without abuse by the trial court, it will not ordinarily be interfered with on appeal.” Bishop on Marriage and Divorce, 6th ed., vol 2, §§ 405-406.

The cases, De Llamosas v. De Llamosas (62 N. Y., 618), and Collins v. Collins (71 N. Y., 269), hold that although a legal marriage is not denied, alimony pendente lite is not a matter of strict right, but the application therefor must be addressed to sound discretion. If, therefore the court, may on a proper occasion, refuse to grant alimony, it seems reasonable to hold that its discretionery power is not exhausted by the original grant or refusal, but that it -may, for good cause, discontinue or suspend alimony already allowed. As the matter rests in discretion the court could certainly make the performance of a reasonable act on the part of n defendant a condition precedent to the allowance of alimony in the first instance. On precisely the same principle the court has power to make the performance of a reasonable act, the propriety of which appears during the progress of the suit, a condition of the further continuance of the alimony.

The act required of the defendant in the present case ■seems a perfectly reasonable one. If she is innocent of the charge brought against her, it is difficult to perceive how her defense can be compromised by her simple attendance for identification. On the other hand, it appears that plaintiff is seriously embarrassed in the conduct of his suit by the inability of his witnesses to say whether or not the person they refer to in their testimony is the defendant. A case is easily supposable where the only possible way of establishing the identity of a person sued with the person to whom the evidence relates would be by an actual inspection by the witnesses. In such a case the defendant, though guilty, might be simply shunning observation, be able to prevent the plaintiff from obtaining a judgment, and prolong the suit indefinitely for the purpose of. continuing in the enjoyment of alimony.

It cannot be urged that the order appealed from violates the provisions of section 831 of the Code of Civil Procedure. It is there enacted that a husband or wife is not competent to testify against the other upon the trial of an action or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the marriage.

The appearance of the defendant, if actually compelled, would not make against the plaintiff, but, if anything, in bis favor and against herself.

But, aside from this, I do not think such section has any application to the subject. Under no legitimate use of language could a simple appearance for identification be held to be “testifying.” The word “testify” comprehends an intelligent, active performance, in which a person by words or writing, or other comprehensible signs, communicates facts within his own mind to another. In merely being identified, a person is as passive as an inanimate object.

Proceedings to compel attendance for identification are by no means unknown in the history of equity jurisprudence. In Curtis v. Curtis (5 Moore’s Rep. P. C., 252), a decree of confrontation had been issued for a wife to appear to be identified in an action against her for divorce, and the court refused to allow a defensive allegation on her part, on the ground that she was in contempt. Lord Brougham used the following language: “ It appears to us not merely the right of a j>arty to object to the admission of this defensive allegation, but it is the right of the court. The court has a right to say that it will not allow the process issued out of the court to be treated with contempt. Mrs. Curtis’ identity was material; it was upon her identity that the case was to be determined. She goes to a ‘ distant county with her paramour, and does not appear to the decree for confrontation.’ Under such circumstances the learned judge was quite right in refusing to admit the defensive allegation on her behalf when she refused to appear, and his decree must be affirmed.”

The object of the decree of confrontation was to compel just what plaintiff is seeking in the present case—an appearance for identification. Of course, under our present Code of Procedure no such technical process exists, but I. see no reason why the court should not by order similar to the one here involved accomplish, as far as possible, the practical result of the ancient decree of confrontation.

The opinion of Judge Rapallo in Griffin v. Griffin (47 N. Y., 134), contains a most interesting discussion of the incidental powers of a court having equity jurisdiction, outside of the authority specially conferred by statute, in relation to the conduct of suits for divorce. It is there shown that although the statute omits to provide for furnishing a wife with alimony pendente lite, yet it “has the' constant practice of the court of chancery, both before and since the Revised Statutes, to make equitable provision for all these matters; and in so doing it has been guided by the decisions of the ecclesiastical courts of England in similar cases. ”

“This has not been done upon the theory that the court was vested with the jurisdiction of the ecclesiastical courts of England in matrimonial cases, or that (except in special cases hereafter referred to) it ever possessed any jurisdiction in cases of divorce, other than that which was conferred by our own statutes; but upon the ground of the general equitable jurisdiction of the court, and also that when our statutes did confer jurisdiction upon the court of chancery in those actions for divorce which by the English law are solely cognizable in the ecclesiastical courts, the grant of that jurisdiction carried with it by implication the incidental powers which .were indispensable to its proper exercise, and not in conflict with our statutory regulations on the same subject.”

Under the general equity powers of this court, it seems both proper and desirable to exact as a condition for the continuance of alimony itself, as before shown, resting in discretion, the appearance by defendant for identification, especially as a special proceeding or process for that purpose formerly existed and was employed in the ecclesiastical courts of England.

The order appealed from should be affirmed.

Daly and Bookstaver, JJ., concur.


text:
    Newton C. Dealing, App’lt, v. The New York, New Haven and Hartford Railroad Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 27, 1887.)

    1. Pleadings—Attachment issued by a court of another state as DEFENSE HERE.
    Where an action is brought against a foreign corporation for wages, the defendant may plead in answer that the amount claimed has been attached in its hands as garnishee by writs of attachment issued by a competent tribunal in another state.
    2. Practice—Appeal, when allowed to the court of appeals.
    Leave will be granted to go to the court of appeals when questions arise that should be determined by the court of last resort, such as to determine the situs of the plaintiff’s claim, the power of the legislature of another state to- alter the right of a resident of this state, and whether a resident of this state should be permitted to reach property exempt by the laws of this state from execution, by suing a resident of this- state in the courts of another state.

      Appeal from a judgment rendered in the district court, in the city of New York, dismissing the complaint.
    The plaintiff sues to recover wages amounting to $80.31 for labor and services rendered to the. defendant at its offices in the city of New York.
    The defendant admits that the plaintiff earned the said sum of money and that it has not been paid to him, but refuses to pay the same and alleges as a defence that the whole of said sum of money has been attached in its hands as garnishee by two writs of attachment duly issued by a justice of the peace in the state of Connecticut, in two suits brought by A. M. Hitchcock & Co., creditors of the plaintiff in this suit against the plaintiff as principal, and the railroad company as garnishee.
    In the1 first of these suits was a judgment rendered for $87.78, full amount claimed
    Execution was issued and $33.65, the amount of Dealings’ wages then due, was collected from defendants as garnishee. Subsequently the second suit was commenced against the same parties on said judgment to recover the amount thereof, still remaining uncollected, and the wages oi Dealing which had been earned in the meantime, amounting go $51.85, were attached in the hands of the defendant as garnishee. In the second suit the writ of attachment is still in force and the respondent restrained thereby from disposing of the money due appellant for wages, amounting to $51.85, judgment has not been rendered in thaf suit.
    The respondent is a foreign corporation organized and existing under the laws of the state of Connecticut. The plaintiff and the attaching creditors are residents of the state of New York.

      Max Bayersdorfer, for app’lt; William E Barnett, for resp’t.
   Per Curiam.

We feel constrained oy oho force of the decision in Embree v. Hanna (5 Johns. 101), to affirm the judgment of the district court, but we give to the plaintiff the right to appeal to the court of appeals.

We give that right because we think that the court of last resort should determine.

(1) Whether the situs of the claim of dealing against the railroad company was in the state of New York, where Dealing lives, or in the state of Connecticut, where the company has its principal office.

(2) Whether it be in the power of the legislature of Connecticut to alter the rights of a resident of New York, who may never have been m Connecticut, by enacting that his intangible property, a mere jus ad rem, shall have a situs in Connecticut.

(3) Whether Hitchcock, a resident of Mount Vernon, N. Y., should be permitted to reach property exempt by the laws of New York from execution, by suing Dealing, also a resident of Mount Yemen, N. Y., in the courts of the state of Connecticut.


author: J. T. Daly, J.

text:
    John L. O’Sullivan, Resp’t, v. Carlisle Norwood, Rec’r of the Lorillard Ins. Company, App’lts.

      (New York Common Pleas, General Term,

      Filed June 27, 1887.)

    1. Landlord and tenant—Liability of landlord for condition of PREMISES.
    The rule that a lessor, in the absence of fraud or express agreement, is not liable to the tenant or others, lawfully upon the premises by his authority, for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they were apparently intended, is not applicable where a building was let to several tenants, and the staircase was the common passage-way to the street for all the tenants and all persons lawfully entering the building, and the passage-way and stairs were not demised to any tenant, but remained in the possession and control of the lessor, to be kept in condition for the common use of all.
    2. Same—Duty as to passage-ways—As to lighting them.
    The lessor, retaining possession and control of the staircase for the said purpose, owed to all persons lawfully using it the duty of keeping it in repair and reasonably safe for travel. If ordinary care required that the stairs should be kept lighted, in order to make them reasonably safe for travel, it was the lessor’s duty to light them.
    3. Same—Sub-tenant.
    The fact that the person injured was upon the premises, as a visitor, not of a tenant, but of a sub-tenant of a portion of the building, does not affect his right to recover for the negligence of the lessor. The latter owed the same duty to the sub-tenant as to the tenant and persons doing business with both.
    Appeal by defendant from judgment for $1,200.21 entered upon verdict for plaintiff. The action was brought to recover damages sustained by a fall on the staircase of the premises 152 Broadway alleged to be due to the negligence of the defendant’s company in not properly lighting the stairs. The plaintiff visited the building for the purpose of calling upon a sub-tenant of a portion of the premises, which portion had been leased to the tenant by the company. The stairway was lighted only from the street, and so imperfectly that the lower step of the second flight was obscured in darkness. The plaintiff in coming down missed the last step and fell; causing the injuries for which the action is brought.

      Norwood & Coggeshall, for app’lt; N. J. Waterbury, Jr., for resp’t.
   J. T. Daly, J.

The appellant invokes the rule that a lessor, in the absence of fraud or express agreement, is not liable to the tenant or others lawfully upon the premises ' by his authority, for then’ condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they were apparently intended. Jaffe v. Harteau, 56 N. Y., 398; Edwards v. N. Y. and H. R. R. Co., 98 id., 247.

The building in which this plaintiff was injured "was let to several tenants, and the staircase was the common passage way to the street for all the tenants and all persons lawfully entering the building. The passages and stairs were not demised to any tenant, but remained in the possession and under the control of the lessor, to be kept in condition for the common use of all. The rule above stated is not, therefore, applicable in this case. Camp v. Wood, 76 N. Y., 92; approved 98 id., 225.

The lessor retaining possession and control of the staircase for the purposes above mentioned, owed to all persons lawfully using it the duty of keeping it in repair and reasonably safe for travel. If ordinary care required that the stairs, or any portion thereof, should be kept lighted in order to make them reasonably safe for travel, it was the lessor’s duty to light them. The question of negligence in this case was submitted to the jury, and their finding is sustained by the evidence, and the same may be said of the claim of contributory negligence.

The fact that the person injured was upon the premises as a visitor not of a tenant, but of a sub-tenant of a portion of the building, does not affect his right to recover for the negligence of the lessor. The latter owed the same duty to the sub-tenant as to the tenant and persons doing business with both. Jaffe v. Harteau, above citing Coughtry v. Globe Woolen Co., 56 N. Y., 124.

The only exception argued upon the appellant’s brief is the refusal of the judge to charge that the letter of Mr. Waterbury, plaintiff’s counsel, to the president of the company, was evidence of a demand only. The letter in question, together with the reply from the attorney of the company, were read in evidence without objection or restriction and were to be considered by the jury for what they were worth. Besides, the letter did not strictly contain a demand, but was in the nature of a notice of the plaintiff’s accident, the cause of it and the extent of the injuries sustained.

The other exceptions do not require a reversal and a new trial.

Judgment affirmed, with costs.

Bookstaver, J., concurs.