text:
    Henry Neil, Resp’t, v. Fords, Howard & Hulbert, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Libel—Pbiyilebed communication.
    Where the facts upon which a claim of privilege is based are challenged, the jury must determine the existence or non-existence of such facts.
    3. Same.
    To constitute a privileged communication, it is not sufficient that the publisher has an interest in the matter, or a duty in respect to it, which renders it proper to state the facts to one who may have a legitimate interest in hearing them, but he must make the statement in go'od faith, believing it to be true.
    3. Appeal—Wbat questions mat be baised.
    Questions left, by the consent of counsel, to the decision of the court as if they had been before the court at special term, are not reviewable unless embodied in findings of fact.
    Appeal from judgment entered on the verdict of a jury for $500 damages in favor of plaintiff, and from order denying motion for a new trial made upon the minutes.

      Thorndyke Saunder, for app’lt; William B. Ellison, for resp’t.
   Parker, J.

The judgment under review awards to the plaintiff damages against defendant corporation for libel.

The exception mainly relied on by the defendant to secure a reversal of The judgment was taken to the refusal of the court to ■direct a verdict in favor of defendant. The contention being that the alleged libelous matter published by the defendant was privileged.

In 1874 the defendant published a book entitled: “Pictures in Palestine—Christ in Art, or Cospel Life of Jesus, with the Bida Illustrations.” On the title page appeared the following: “Illustrated with one hundred full page plates, on steel and wood, executed by ‘Brend Amour’ of Dusseldorf.” In 1888 the defendant published another book, containing illustrations from “Bida" •designs, bearing the following title: “ Pictures in Palestine— The Story of Jesus—A Boole for the Home, by Louisa T. Craigin.” In each book it was stated, on the title page that it was illustrated with one hundred full page plates, from the designs of 41 Alexander Bida.” In 1890 the plaintiff published an illustrated edition of the “Life of Christ, by Canon Farrar,” under the following title: “ The Story of Jesus—The Sweet Story of the Life •of Christ, by Canon Farrar, D. D., F. B. S.” It contained sixty-two illustrations, seven of which were of the “ Bida ” designs.

The plaintiff testified that “he took seven ‘ Bida’ designs from the book,” entitled “ Christ in Art,” and this was done after reading on the title page that they had been re-engraved by “ Brend Amour,” and after being informed that, as it was the work of a foreign artist, they were not the subject of copyright in this country, and, therefore, could be used by any one.

Knowledge of the plaintiff’s publication coming to the defendant, it issued the circular of which complaint is made in this action. It is as follows: “ Caution: A legal opinion concerning ‘The Story of Jesus.’ illustrated with a large number of magnificent full-page engravings, by Alexander Bida, the converted Jew, and other world renowned artists. We are the inventors and owners of the series of copyrighted wood engravings of the celebrated Bida designs, illustrating scenes in the life of Christ, published and copyrighted in the book entitled ‘ Christ in Art,’ also of ‘ The Story of Jesus,’ by Mrs. Louisa T. Craigin.

“We have recently learned that an individual named Henry Neil, giving himself the corporate style of ‘ The Commonwealth Publishing Company,’ as if he were an association of capitalists, is about to bring out, under the above title, Canon Farrar’s ‘Life of Christ,’ which was published sixteen years ago in England, and can be bought anywhere in cheap American reprints.

“ In order to make it attractive to agents and the public, this old book is to be ‘freshened up’ with á new and false title, taken baldly from our copyrighted volume, ‘ The Story of Jesus,’ by Mrs. Louisa T. Craigin. Mr. Neil’s large yellow poster circular says of it: ‘ The whole world is wild with enthusiasm over the long looked for story of Jesus by Canon Farrar.’ This falsely named book is to be illustrated with cheap casts ■of old cuts, together with poor reproductions from some of ■our copyrighted engravings of the Bida designs. Some portions of the title page of this ‘ religious teacher ’ are appropriated from other books that have had a large sale, the apparent design being to convey false impressions concerning the identity of the book. With these we have nothing to do; but in reference to our rights, we desire to call the attention of all interested in printing, making, publishing or vending this cheap imitation of a well known art book, to the following extracts from a decisive opinion :

“Hotice — The original designs or etchings may be copied, or redrawn and engraved, by anybody; but our engravings o£ them, invented and directed by American citizens, although mechanically executed by foreigners (just as most of the engravings in The Century and other magazines are to-day), cannot be-copied or used without our permission, except under risk of' being tied up by injunction, and, upon damage of our business,, by legal penalty. The title, text and illustrations of 1 The Story of Jesus ’ are duly protected by copyright, and all rights reserved.
“ Beware of the sixteen year old book of Canon Farrar, put. forth under a new and false title, ‘ The Story of Jesus,’ said title being appropriated from another book which it is sought to imitate.
“Beware of coarse pen drawings, cheap process cuts and all imitation of our copyrighted wood engravings of the Bida designs, published without our permission on the copyright page.
“Beware of them, because they are fraudulent religion and poor art; and beware of them, because making or selling them will subject you to risk of legal interference and penalty.
“ Fords, Howard & Hulbert,
“30 Lafayette place, Hew York.”'

These circulars were sent chiefly to subscription book publishers, subscription book agents and printers.

The defendant, conceding that the matter contained in the circular was prima facie libelous, insisted, nevertheless, that its publication was privileged, and, therefore, not actionable, in the absence of proof of express malice. It asserted that, because it was engaged in the sale of books which it believed plaintiff’s publication would necessarily and wrongfully injure, it had such an interest as to entitle it, in good faith, to warn dealers against an attempted invasion of its rights.

Hpon the trial, as now, the appellant invoked the general rule, that whether a publication is privileged, and, therefore, prima facie excusable, is a question of law for the court.

An exception to the general rule arises where the facts upon .which the defendant bases its claim of privilege are challenged by the plaintiff; then a jury must determine the existence or nonexistence of the facts which are asserted as the basis of the privilege.

To constitute a privileged communication, it is not sufficient that the publisher has an interest in the matter or a duty in respect to it which renders it proper to state the facts to one who may have a legitimate interest in hearing them, but he must make the statement in good faith, believing it to be true.

In this case the plaintiff insists that there is evidence to support a finding that some of the important statements in defendant’s circular were not only untrue, but that defendant knew them to be untrue at the time of the publication, and, therefore, the court was not permitted to hold, as matter of law, that the communication was privileged.

Among the statements thus challenged are the following:

1. That the defendant is the inventor of the wood engravings of the “ Bida ” designs, and that such engravings were copyrighted. The allegation that defendant was the inventor of the wood engravings, it is contended, was contradicted by the statement on the title page of the book entitled “ Christ in Art,” which states that they were executed by “Brend Amour.” That the statement that the engravings are copyrighted is put in issue by the testimony of the president of the defendant, who testified that he knew that engravings made by any person not a citizen of the United States, or a resident therein, was not a subject of copyright.

2. That the defendant incorrectly stated the title of plaintiff’s book, and that the jury was authorized in finding that it was known to be untrue, from the fact that the defendant had in its possession the advance sheets, or sample pages, together with a large advertising poster issued by the plaintiff.

S. That the evidence permitting a finding that the statement that plaintiff’s book was falsely named was untrue, and so known to be at the time, is found on the title page of the book then in defendant’s possession.

Plaintiff points out five other instances in whicfi he claims the circular contains material and untruthful statements, and in respect to which the evidence adduced would support a finding that defendant then knew them to be untrue.

It will serve no useful purpose to discuss each specification. The consideration which we have given to them leads to the conclusion that the facts upon which the claim of privilege was founded are so far disputed as to deny to the court the right to hold, as matter of law, that the communication was privileged.

The denial of defendant’s motion to direct a verdict was, therefore, required.

The result would have been the same if the court had attempted to hold that the communication was privileged. In such a case the plaintiff must show express malice in order to recover.

The evidence to which we have alluded, tending to show the untruthful statements in the circular, and knowledge of their untruthfulness on the part of the defendant, considered with certain testimony by the president of defendant touching the motive which induced the publication of the circular, would have presented a question for the jury whether plaintiff had not shown express malice.

The president testified: “ The circular was published and circulated for the purpose of preventing the plaintiff here .from effecting sales of his book. * * * It was not with the idea of casting some slur upon him that we worded it in that way, but it was upon the publisher of the book which lie announced. We knew at that time that he was the publisher of the book, but it was as a publisher, not as a person. The circular did contain this state-statement : 1 This falsely named book is to he illustrated with cheap casts of old cuts, together with poor reproductions from some of our copyrighted engravings of the Bida designs.’ That statement was made with the purpose of running down the book, so the people would not purchase it.”

The other point represented by the appellant is that the court erred in permitting the jury to consider defendant’s counterclaim for infringement of its trademark. The court decided that the question was one for the jury, and defendant excepted. This position seems to have been receded from by the court, with the consent of counsel. It appears from the record that “ by consent of counsel this question was considered as if it had been before the court at special term.” Tims, the exception to the original determination to submit the matter to the jury became inoperative.

The court then proceeded to dispose of the question adversely to defendant’s contention, without making any findings of fact.

In order to review the determination of the court at special term, findings of fact were necessary.

Were it not so, and the question properly reviewable here, the determination of the trial court, that the defendant bad failed to establish the trademark right in the use of the title “ The Story of Jesus,” would be approved.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concur.


source: Caselaw Access Project

author: Sherman, S.

license: Public Domain

text:
    In the Matter of the Estate of William O. Strong, Deceased.

      (Surrogate’s Court, Chautauqua, County,

      Filed November 6, 1893.)

    Executors and administrators—Personal claim—Estoppel.
    By the third clause of ids will the testator bequeathed to the claimant, Abram H. Johnson, one of his executors, certain fanning tools and other personal property of the value of about sixty-five dollars with the following provision: " The foregoing bequests to be in full compensation for apy and all care said Johnson may render me in my old age." After the will was probated and said Johnson qualified as such executor he accepted and received all the property so bequeathed to him, as appears by the inventory and account verified and filed and other evidence. Held, that such claimant is estopped from making claim for care and services rendered to testator in sickness in his old age. '
    Judicial settlement of executor’s accounts.

      S. P. Fox, for claimant; Towne & Record, for Albert J. Homan and other contestants; A. W. Hull, special guardian for minors, contestants.
   Sherman, S.

The testator died January 26, 1892, of the age of over eighty-two years. His wife died May 14, 1881. Decedent left him surviving the following heirs and legatees; Oelestia May Johnson, granddaughter, minor, an only child and heir of Abram H. Johnson, said executor; Jenny Pattyson, full age; Emma Osborn, full age; Henry Homan, full age; Edgar Homan and Albert Homan, both minors. All the above named are legatees, and the last five named are grandchildren of the testator and children of Albert J. Homan, one of the executors, and a son-in-law of the testator.

The testator by the first clause of his will directed that all his funeral expenses and just debts be first paid. The will was dated December 16, 1890, and probated June 7, 1892.

By the second clause of his will he bequeathed to his grand- . daughter, Celestia May Johnson, only child of said Abram H. Johnson, executor and claimant, his parlor stove, parlor chairs, and center table.

By the third clause of his will he bequeathed to his said son-in-law, the claimant, his bay mare, called Fannie, his lumber wagon, cook stove and his one-half interest in his heavy double harness, plow, cultivator, harrow, berry crates and baskets, the other half interest being owned by said Abram H. Johnson. The value of the testator’s interest in said property, as appraised, being about sixty-five dollars. Immediately following the description of said property, and in the same clause the will reads as follows : “The foregoing bequests to be in full compensation for any and all care said Johnson 'may render me in my old age.”

By the fourth clause of his will the testator bequeathed all the rest of his household goods, one-half to his said, granddaughter, Celestia May Johnson, daughter of said Abram H. Johnson, claimant, and the other half to his five grandchildren above named, children of the said other executor, Albert J. Homan, share and share alike.

By the fifth clause of his will he bequeathed his gold headed cane to his said son-in-law, Albert J. Homan, executor.

By the sixth clause of his will he appointed his two sons-in-law, Abram H. Johnson and Albert J. Homan, the executors of his will, and authorized and directed them to sell all the residue and remainder of his real and personal property, and to divide the proceeds thereof between his said six grandchildren, viz.: Celestia May Johnson, Jenny Pattyson, Emma Osburn, Henry Homan, Edgar Homan and Albert Homan, share and share alike, and in pursuance thereof the said executors sold the real estate owned by the testator at his death, consisting of an improved farm, with farm buildings thereon, and containing thirty-five acres, for $8,125, and delivered to the several legatees named in his will the personal property bequeathed to them respectively and sold the remainder of such personal property as directed by the will. He directed that his executors should not charge any commissions for administering his estate, and they have not done so in their account as rendered and filed. He directed that the expenses of administering the estate should be paid out of it.

The testator owed no debts at his death exceeding twenty-five dollars, and his personal property was appraised at $849.95, as appears by said account filed March 26, 1898, so made and verified by both executors, and is admitted bv all parties interested to be correct, and shows a balance of $3,205.87 in money for distribution to the legatees as provided by said will, less the expenses of the executors in administering the estate.

On the hearing herein for the settlement of said account and for distribution of said funds to the legatees as directed by the will, said Abram H. Johnson, co-executor, presented his personal •claim against the estate, amounting to $1,748.

The testator at his death owned an improved farm with dwelling house and barn and other farm buildings thereon, which the ■executors have sold, as above stated, for $3,125. The claimant owned a farm of fifteen acres adjoining, with no buildings thereon, used for pasture, meadow and cultivation, of the value of less than one-half of the thirty-five acres owned by the testator.

On the hearing herein no witnesses were sworn on the part of the contestants, except Albert J. Homan, who testified that all the personal property bequeathed to his co-executor, Abram H. Johnson, had been accepted and received by him.

It appeared from the evidence, and was not contradicted, that the testator and his son-in-law, Abram H. Johnson, liad worked the two farms and used the same and the products thereof in common, and divided the net avails thereof, after paying for hired help on the farms and in dwelling house, share and share alike, up to the time of the death of the testator, a period of over twenty five years ; that during said time Johnson and his family had lived in the dwelling house and with the family of the testator, all eating at the same table, and that no account was made at the lime between them for the board and support of them or of their respective families, nor for pay to their hired help on the farms or in such dwelling house. Evidence of this is confirmed by the account and inventory made and verified by both executors and filed.

On the hearing herein the claimant withdrew all his claims as stated in his personal account arising before six years preceding the testator’s death, January 26, 1892. These claims so withdrawn covered a portion of the claim of $624 for helping to attend to the comforts and care of the decedent from November 1, 1885, to November 1, 1891, covering 312 weeks at two dollars per week.

The several claims of the claimant for building hog pen and three additions to house and furnishing lumber for same, and for helping build barn and furnishing one-half the lumber and shingles, arose over six years before the death of the testator, amounting to $520, and a portion of them from fifteen to twenty-five years before his death. The same is true for setting out pear and peach trees. In addition to the above the claimant demanded $144 for services in care of decedent during six years prior-to his death, and three hundred dollars for care and services in his last sickness.

The contestants duly objected to all such claims in their verified written answer, and alleged that same were unjust, and that same were outlawed except those arising during six years preceding his death.

The testator was confined to his bed by sickness during about two months preceding his death and was sick on an average about one month in a year, during about five years before he died. Mr. Johnson assisted in taking care of the testator when sick and took the principal care of him in his last sickness.

Alice Morrison worked there in the house as a domestic in his last sickness and has been paid out of the estate for her services $16.50, as appears by the evidence and by schedule “D” as verified by the executors and filed.

The respective families of the claimant and testator consisted of the testator and his wife, who died May 14, 1881, and who assisted in doing housework for the two families until about the time of her death. The family of the claimant consisted of his wife, who died June 1, 1890, and was sick during the last year of her life and unable to do any work, and the adopted daughter of the claimant, Cora Donnahue, who went into these two families to live when she was less than a year old and was supported, educated .and clothed by the claimant and the testator until about November 20, 1891, she being then about twenty years old; she made no charge for her services and nothing was paid to her therefor, except in her support. The two families lived together as one family.

All the net products of the two farms after paying expenses of conducting same, including hired help, medical attendance and burial expenses for the two members thereof who died as above stated, were equally divided between the claimant and the testator up to the time of his death, January 25, 1892, except for medical care and attendance upon him which has been since paid out of his estate. No claim was made that the testator did not do his share of the work on the two farms during twenty-six years preceding his death, excepting the last five years of that time he was sick on an average of about one month in each year and unable to work, but otherwise assisted in the work and management of the business.

The witness, Alice Morrison, niece of the claimant, testified to .a conversation with her father at his residence in 1891 in which the testator said that Mr. Johnson should have his pay for what he had done there, and that May, meaning the daughter of the claimant, should have half of the property. Abbie Johnson, the sister of the claimant, and who was present at the same conversation, testified to same conversation substantially as did the witness Alice Morrison; this conversation was a few months after the testator made his will. Alice Morrison also testified that she was present at one time during the last sickness of the testator and heard him say that May should have half of the property .and that Mr. Johnson should have his pay; nothing further.

Abbie Johnson, sister of the claimant, testifying to same conversation as Alice Morrison above, swore that the testator said: Oh, May shall have half! ” But the witness did not say anything about the claimant having any part of the property, or any pay for his services.

The testator after bequeathing, as above stated, to his granddaughter, Celestia May Johnson, his parlor stove, parlor chairs and parlor center table, bequeathed to the claimant the articles mentioned in the third .clause of the will a'ud of the value of about sixty-five dollars, as stated by him, ‘ la be in full compensation for any and all care said Johnson may render me in my old age." And then he further bequeathed one-half of all the rest of his household goods, not before disposed of, to the daughter of the claimant, Celestia May Johnson, and the other half to his five grandchildren, being the sons and daughters of his other son-in-law, Albert J. Homan, co-executor, share and share alike, and after giving his gold-headed cane to Albert J. Homan, his son-in-law, he, by the sixth clause of his will, bequeathed and devised all the rest of his real and personal property to his six grandchildren, above named, share and share alike, and directed his executors to_ sell the remainder of his real and personal estate, which they have since done, and make distribution accordingly, which they have Z not yet done.

The testator thus disposed of his entire property by his will.

This appears to have been a just, equitable and sensible disposition of the testator’s estate, and the claimant having accepted its provisions, as appears in his verified account and inventory, and by the uncontradicted evidence of his co-executor, Albert J. Homan, I am of the opinion that he is in law estopped from recovering any part of his personal claim herein; he having accepted the property bequeathed to him upon the conditions named with full knowledge thereof, such act must be regarded as an accord and satisfaction of his claim. To allow any part of it would be unjust to the other legatees.

The claimant has not returned, or offered to return, the personal property bequeathed to him under the third clause of the will, and it must be held that he has accepted the bequest under the conditions named; and this without regard to the value of the property so bequeathed to and received by him. Caulfield v. Sullivan, 85 N. Y., 153; Chamberlain v. Chamberlain, 43 id., 424, 442-3.

I direct decree disallowing the personal claim of Abram H. Johnson, with seventy dollars costs against him personally ; and also confirming the account of the executors filed March 26, 1893, with costs and expenses on accounting payable out of the estate, to be taxed and adjusted, and inserted in decree on final accounting and distribution to legatees, together with twenty dollars costs allowed to A. W. Hull as special guardian for minors in proceedings on said personal claim, payable out of the estate.


author: Hardin, P. J.

text:
    John W. Collins, Adm’r, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Negligence—Contributory.
    Plaintiff’s intestate, an intelligent boy, about nine years of. age, who was well acquainted with the running of defendant’s trains, was on the platform of a circus advertising car which stood on the dead track between the passenger tracks, having performed an errand for the circus people, when a train approached which was visible from where he stood. He apparently looked in that direction, and then got down and attempted to cross the track on ■which the train was approaching, and was struck and killed by it. Held, that the question of his contributory negligence was. properly submitted to the jury.

      2. Same—Bailboad—Tbesfasseb.
    The lands upon which the accident occurred being the property of the railroad, and no license or consent having been given by it to the intestate to be where he was, he was a trespasser, and not entitled to notice of approaching trains, as defendant owed him no active duty.
    Appeal from a judgment entered upon a verdict in favor of the defendant taken at the Herkimer circuit; and from an order denying a motion for a new trial on the judge’s minutes. Action for alleged negligence and the alleged wrongful act of the defendant in killing the plaintiff’s intestate at the village of Herkimer,, on the 14th day of May, 1889.

      E. La Grange Smith and J. A. Steele, for app’lt; C. D. Prescott, for resp’t.
   Hardin, P. J.

Main street in the village of Herkimer crosses the tracks of the defendant at a right angle, and defendant’s passenger depot is east of Main street. Its passenger tracks one t and two are separated by the depot, Ho. 1 on the south track goes south of the depot, and Ho. 2 north. West of Main street was a “ dead track,” or a branch track between tracks Ho. 1 and 2, extending some 175 feet west of Main street and easterly of Washington street. At the time of the accident an advertising car or advance car of a circus company stood upon the dead track and was occupied by persons in the employ of the circus; in one end of the car arrangements were placed for cooking, and in other parts of the car arrangements for distributing the advertising bills and for paste and other materials used in preparations to post and circulate the bills heralding the approach of the circus. The accident occurred about 5:25 in the afternoon, as an express train was passing along track Ho. 2 westerly, and approaching a point opposite the circus car. The deceased, a boy some eight or nine years of age, who apparently had been doing some errand for the parties occupying the circus car, stood upon the easterly platform of the circus car, and from that point could see the approaching train 1,000 feet or more distant; he apparently looked at it, and as the train neared, the car platform on which he was standing he stepped down, and, in a direction northwesterly taken by him, attempted to pass over track Ho. 2, which was the one occupied by the approaching express train. He failed to make his transit across track Ho. 2 so-as to clear the approaching train, and was caught by the cowcatcher, thrown into the air and killed. Apparently the express train was approaching at a rate of speed of from thirty-five or more miles an hour; there being some difference in the opinion expressed by the witnesses on the subject of speed of the train, and as to whether the engineer was endeavoring to make up lost, time. The evidence in that regard was fully presented to the jury in the charge delivered by the trial judge. Apparently the deceased, after he got down from the car and started to cross the track, going northwesterly, turned his head and looked to the east, and immediately started on a run, and while thus endeavoring to thus pass across the track he was struck by the engine. He had been seen at the advertising car carrying water for the cook in the car from a point near the east end of the passenger depot. There was nothing to prevent a person from alighting from the end of the circus car and passing southerly. The defendant owned the property lying between Main and Prospect streets, and was using the same for tracks and cars and in carrying forward its business. The deceased was an ordinary sized boy of his age; ordinarily intelligent, and resided east of the passenger depot and south of the railroad, about 100 feet from it; he was accustomed to attend school, and in doing so crossed the railroad in passing to and from his school; and he was accustomed to go over the track at other points, having been at times sent to stores to do the trading for his family on the north side of the railroad and oA Main street, and when engaged in such business he was required to cross the tracks, and bad been so accustomed to cross them for some two years before the accident. He had good hearing and eyesight, and apparently was a quick, active, bright boy, and for various purposes be had been more or less around the passenger depot. Whether the deceased was guilty of contributory negligence was submitted to the jury as a question of fact. In doing so the court followed the doctrine laid down by Andrews,' J., in McGovern v. N. Y. C. & H. R. R. R. Co., 67 N. Y., 422. The doctrine of that case was followed in Barry v. N. Y. C. & H. R. R. R. Co., 92 N.Y., 294. The same doctrine was repeated at the close of the opinion in Byrne v. N. Y. C. & H. R. R. R. Co., 83 N. Y., 620 : Swift v. Staten Island Rapid Transit Railroad Co., 123 id., 645 ; 33 St. Rep., 604.

In Tucker v. N.Y. C.& H. R. R. R. Co., 124 N.Y., 316; 36 St. Rep., 272, it was said: “An infant of tender years is not expected to exercise the same care and caution which is required of a person of more advanced age, so that it frequently becomes a question for the jury, under proper instructions by the court, whether a child exercised that measure of care and caution which should be required and expected from it.” We think the plaintiff could not complain of that branch of his case, which was submitted to the jury fairly. In considering a case where a boy was injured by an approaching train in Wendell v. N.Y. C. & H. R. R. R. Co., 91 N.Y., 428, it was said by Euger, Ch. J., viz.: “ He should not be permitted to make close calculations to determine whether he can safely pass in front of an approaching body, and when the experiment has failed charge the consequences of his mistake upon the owner of the colliding vehicle or property. Belton v. Baxter, 54 N. Y., 246.” In the course of the charge the trial judge said: “It appearing that he was acquainted with the running of the cars, that he was a boy accustomed to hang around the depot there, as the testimony of Fox shows, and accustomed to get on and off his car at different times, and that he had been ordered off his car at different times, and had been ordered away from the road; tending to show, I say, that he was acquainted, although a boy, with the running and the operation of the cars, being thus acquainted, under all the circumstances, if he was guilty of carelessness, although a hoy, then there can be no recovery by the administrator in this case any more than there could be by the boy himself if he were the living party and had brought an action for an injury to his person. * * * He must come here free from fault on his part, and if he comes here charged with any fault, however remote, which caused or contributed to the injury which he complains of, he is without remedy. * * * Therefore, if you find that he was careless in the manner in which this accident happened and in the position in which he put himself in reference to this train, your verdict will be for the defendant. * * * But if you find, under the circumstances, that the boy was not guilty of any act of negligence for which he should be charged that caused or contributed to his injury, then the next question which would be for you to determine is, was the defendant guilty of any act of negligence on its part that caused the injury of which the plaintiff complains.”

Thereafter the court proceeded in its charge to consider the question relating to the alleged negligence of the defendant, and adverted to the speed of the train and to the question whether a bell was rung or a xvhistle was sounded; and continuing his charge, he said: “ But there was no obligation on the part of the defendant, the railroad company, to blow the whistle or ring the bell upon this train to notify the boy of its approach, for the reason that he was not upon the crossing. He was not rightfully upon the lands of the defendant, the railroad company. He was a trespasser there. He had no right to be there, and, as an adult, if he had been injured while thus of his own volition u]pon the lands of the defendant, the fact that he was a trespasser at the time would have prevented any recovery on his part. The boy, therefore, being a trespasser on this occasion, was entitled to no notice of the approach of the train, because no duty was owing by the defendant to him, he being there wrongfully at the time, and the defendant owed him no obligation or protection except that obligation which belongs ordinarily to the business of life. * * * How, what obligation did the railroad company owe to this boy ? He was a trespasser there, as I have stated. He had no right, to be upon the railroad track, and it is recognized not only as a common sense proposition, but as the growth of our daily observation, that a railroad track over which a steam engine with a train of cars attached is driven with the fearful volicity that they are run is always a place of danger, and, therefore, a place that everybody is bound by law and by a consciousness of self-preservation to protect themselves against” At the close of the charge the counsel for the plaintiff asked for an exception in the following language: “ To that part of your charge in which you say that the boy was a trespasser upon the lands of the railroad at the time he was killed.” In response thereto the court observed: “Yes, there is no evidence of any such license or consent on the part of the railroad company as justified the boy in being where he was upon the lands of the railroad company over which their tracks pass, outside of some right that is secured to the public beyond the track, as exclusively belonging to and for the safety of the public, must be secured in the company itself.” After that observation the counsel for the plaintiff took an exception. It is now insisted in behalf of the plaintiff that the exceptions present error. The point where the intestate received injuries was no part of the public highway. It was the property of the defendant. It had a right to maintain its tracks and to operate its trains across the tracks at that point. The deceased had received no license from the defendant to enter upon that track at that point, and therefore the trial judge was warranted in stating that the deceased’s entry upon the land at the point where he received the injuries was a trespass. The defendant had a clear right to authorize the circus car to be and remain where it was upon its property ; as was said in Nicholson v. Erie Railway Co., 41 N. Y., 525, it was “ placed there for á lawful purpose, and in the proper discharge of their usual and ordinary business. They had the same unqualified right which every owner of property has to do with his own as he pleases, and keep it and use it where and as he pleases on his own ground up to the point when such use becomes a nuisance. ¡Nicholson, the deceased, on the contrary, was not on his own ground. He was where he had no legal right to be. At most, he had a mere license to cross the defendant’s track, a license implied from use, and from the fact that such use had not been expressly forbidden. But such license created no legal right, and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury.” In the same case, at page 532, it was said, in the course of the opinion, the intestate 11 has no right as against the defendant to be there. It could at any time have revoked the license and then he could not have crossed at that point without being a trespasser. The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. * * * It did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. If the point where the intestate was killed had been a public highway, or if at the time he had been a passenger in a car upon the main track, and he had been injured by collision with the cars coming down the branch track, or if in any other way he had been not only lawfully, but in the exercise of a right at that point, the defendant would have owed him a duty." The doctrine of that case was adverted to in McAlpin v. Powell, 70 N. Y., 132, and the distinction was pointed out between a case where an infant was lawfully in the highway 11 and a case where he is palpably invading the premises of another and is a mere trespasser. In the latter case a party is without protection of the law except in special cases.”

It is insisted that the court committed an error in saying to the jury “ There is no evidence of any such license or consent on the part of the railroad company as justified the boy in being where he was upon the lands of the railroad company over which their tracks pass, outside of some right that is secured to the public beyond the track, as exclusively belonging to and for the safety of the public, must be secured in the railroad itself.” After such statement by the court a general exception was taken. If some portion of the remark made by the court was proper then the exception is unavailing. The sentence, as we find it in the appeal book, is somewhat involved, and is apparently somewhat indefinite. We think the exception does not point out clearly any error. It is insisted in behalf of the appellant that the court committed an error in excluding the question as to the location of the mills “ along the line of the railroad on the east side of it and also in excluding an answer to the question, How many railroad crossings are there in the village of Herkimer ?” The attention of the court was not called to any fact or circumstance indicative that an answer to the question propounded would shed any light upon the questions involved in the trial. We think the rulings made by the trial judge were not prejudicial to the plaintiff. The foregoing views lead us to sustain the verdict.

Judgment and order affirmed, with costs.

Merwin and Parker, JJ., concur.


text:
    Mary Ann Thuringer, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Negligence—Ice on sidewalk caused by water flowing from railroad water tank.
    Plaintiff was injured by falling on ice upon a sidewalk. It appeared that such ice was caused by the drippings of water from defendant’s water pipe and tank which flowed upon the sidewalk and there froze. In an action for snch injuries, Held, that it was a question of fact whether defendant was guilty of negligence and whether such negligence caused or contributed to the injuries, and that such question was properly submitted to the jury.
    2. Same—Contributory.
    Where there is some evidence of the freedom of plaintiff from contributory negligence, such question is one for the jury.
    8. Same—Damages—Married women.
    A married woman is not entitled to recover in an action for personal injuries for loss of time which she applies to household services, although her husband has not lived with her twelve years and she has had her earnings and used the same for the maintenance of herself and children, wlnre " there is no proof that the husband was dead, or that he had not assisted her or agreed that she should have her earnings, and in such case it is error to refuse to charge that ‘"the husband lias a right of action against the defendant for all loss of household services occasioned by the accident, if anyone is entitled to recover for the accident.”
    Verdict for the plaintiff for $1,000 at the Oneida circuit; motion for a new trial on the minutes made and denied. Appeal from the order and judgment. Action for alleged negligence. The complaint alleges “ The said defendant wrongfully and unlawfully and negligently permitted and allowed water to flow and escape from the water pipe, tank and its locomotives, * * and from the premises of defendant, on the sidewalk of said J ames street in the city of Rome, the same being a public street, and wrongfully and unlawfully and negligently permitted the same to remain and to continue to flow and escape onto said sidewalk until a large accumulation of said water on said sidewalk froze and became icy and slippery and dangerous to the public and people traveling on said walk and street, and wrongfully and negligently neglected to remove said tank and accumulation of ice caused as aforesaid after it had knowledge that it was dangerous, * * * and the said plaintiff on or about January 10, 1892, while walking on said sidewalk, without any cause or fault of her’s, slipped and fell, thereby seriously and permanently injuring her, and making her sick and sore, and unable to attend to her business.” The answer denied the complaint, and alleged the injury in the complaint “was the result of the carelessness, negligence and want of proper caution on the part of the plaintiff, and not otherwise.”

      C. D. Prescott, for app’lt; McMahon & Curtin, for resp’t
   Hardin, P. J.

—On the 10th of January, 1892, the plaintiff resided in the Hager block on James street, in the city of Rome, and had occasion to visit Antmann’s, south of the railroad; about nine o’clock in company with her son, a boy some fourteen years old, she started to return to her residence, passing along the sidewalk on the westerly side of James street towards the defendant’s road near its water tank; and she testifies, “My both feet went out from under me and I went down in a heap; I tried to get up and I couldn’t. I fell again, and I discovered ice under my hand, and I looked up and saw the water spout while I was lying there; my boy came then and tried to get me up, and I couldn’t stand on my feet. As I fell I struck on my left hip—sat down on it—right on my left side; my left side was towards the left- side of the sidewalk as I came up; I fell with my whole side down, over on my left elbow; I tried to get the first time on my knees and couldn’t get any further, and I fell down again because I was so sick, because I felt sick to my stomach and everything whirled around me. I noticed the water column when I tried to get up the second time.” Frank, her son, who was with her on the occasion when she fell, testifies : “When she fell she was about three feet from track Ho. 1; she was right opposite the spout when she fell; she fell right over on the left side towards the spout; I noticed the condition of the sidewalk in front of that spout at that time—it was very icy; the ice extended over the whole sidewalk and was underneath the spout and around the standard, and it extended all through track Ho. 1, to the walk over track Ho. 1.” Other witnesses were called who testified as to the.condition of the sidewalk; testified as to the manner in which the water column was used and the effect caused by the drip, and that the action of the wind carried the waterside-ways from the mouth of the column at times. Upon the whole evidence relating to the subject we are of the opinion that it was a question of fact whether the defendant was guilty of negligence and whether the negligence of the defendant caused or contributed to the injuries which the plaintiff received.

At the same point where this accident occurred another injury was caused to a person passing along the sidewalk which lead to an action, and the trial thereof was brought into this court for review, and our opinion delivered in that cause is found in 49 State Rep., 566, in McGoldrick against the defendant. In that case, in the course of the opinion delivered in behalf of the court,, it was said: “ whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact. The defendant claims that there is no basis for a recovery because the obstruction was upon a sidewalk, and the city therefore only liable. It has, however, been held that an owner of adjacent premises who, without authority, interferes with a sidewalk for his private purposes and fails to restore it to a safe condition is liable to anyone sustaining injury thereby.” Applying the doctrine found in the opinion from which the quotation has-been made, we think there was no error upon the facts before the court in submitting the question of the defendant’s negligence to-the jury.

(2) The trial judge in dealing with the question of whether the plaintiff was guilty of contributory negligence said: “ She was walking in a public street, upon tliat part of it, the sidewalk, prepared especially for foot passengers, and it is for you to say whether she was guilty of negligence or not in walking along there without looking" to see whether there was any danger * * * ; if you find that she was guilty of negligence, and that her negligence contributed to the -injury which she sustained, then she cannot recover, even if the defendant was guilty of negligence.” We think the trial judge was warranted by the evidence relating to the question of her freedom from contributory negligence in submitting it to the jury and that the charge was as favorable as the defendant was entitled to have delivered upon that subject.

(3) In the course of the charge upon the subject of damages the judge said: “ You can allow her for her loss of time, for her suffering and for the pain that she has sustained * * At the close of the charge the defendant’s counsel requested the court “to charge that the plaintiff is not entitled to recover in this action for any loss of time which she applied to her household service or services; ” in response to that request the court observed “ Of course that would be so if she was living with her husband. I decline to charge that; ” the defendant took an exception, and requested the court “ to charge that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if anyone is entitled to recover for this accident; ’’ in response thereto the court observed. “ I decline to charge that as applicable to this case; ” and the defendant took an exception thereto.

It appeared in the evidence that the plaintiff was a woman some fifty-six years of age; that she had had several children,, and she testified that she had lived in Borne twenty-three years; and also, “ my husband is not living with me,” and that it was about twelve years since he had lived with her. There was no proof of his death; there was no proof that she had not heard from him during the period of time covered by the separation from him, or where he was, or that he had not assisted her, nor was there any proof that- there had been a dissolution of the marriage relation or an agreement that she should have her earnings separate and independent of any claim by him. -She did testify; however, that during the time she had mentioned she had “worked out and earned money by cleaning and washing. All the earnings I have I have had for my own support and maintenance since that time. Prior to the 10th day of January, and for a number of years, or since the time my husband left me, 1 have been working out by the day and taking in washing.”

In Filer v. N. Y. C. & H. R. R. R. Co., 49 N. Y., 56, which was an action by a married woman for injuries sustained, Allen, J., .said, “ Her services and earnings belonged to her husband; and for loss of such services, caused by the accident, he may have an action.”

In Brooks v. Schwerin, 54 N. Y., 348, it was said: “The services of the wife in the household still belong to the husband, and so far as an injury to her disables her from performing such services the loss is his, and he, not she, can recover therefor.” That case was cited in Coleman v. Burr, 25 Hun, 242, in an opinion delivered for this court, approvingly; and the opinion stated, “and so far as an injury to her disables her from performing such services the loss is his, and he, and not she, can recover therefor.” Our decision in that case was affirmed in 93 N. Y., 17. These and ■other cases were referred to in the opinion delivered in Blaechinska v. Howard Mission & Home, 130 N. Y., 503; 42 St. Rep., 387, and near the close of the opinion it is said, viz: “Applying the law, as we gather it from the statute and the manifold decisions, to the facts of this case as now laid before us, we think the plaintiff is entitled to recover actual damages only, and that the consequential damages for the loss of her services both in the house and in the shop, should be recovered by her husband in a separate action brought in his own name. The damages for the injuries to her person belong to her, because the statute has given them to her, but the damages for the loss of her services belong to him, because the common law gave them to him and the statute has not taken them away.” Applying the doctrine of the cases to which reference has been made, we are of the opinion, under the facts disclosed in this case, the learned trial judge ought uto have yielded to the request to charge “that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if anyone is entitled to recover for the accident.” For the error presented by an exception to the refusal to charge as requested, we think a new trial must be ordered.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.

Merwin and Parker, JJ., concur.


text:
    Frederick W. Puff, Adm’r, Resp’t, v. The Lehigh Valley Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Negligence—Railroad crossing—Signals.
    Where witnesses for the plaintiff, who are shown to have been in a position to hear the signals if any were given, testify that the bell was not rung or whistle blown, and defendant’s witnesses testify that the bell was rung, it is not error to submit to the jury the question whether the signals were given, and whether the omission thereof, under the circumstances, was negligence on the part of defendant.
    2. Same—Contributory.
    Plaintiff's intestate, who was driving a team, stopped twenty-eight feet from the crossing of defendant’s tracks and waited for a freight train to pass, and after it had gone 266 feet raised up and looked both ways and attempted to cross, when he was struck by a train going at the rate of forty miles an hour. Held, that the question of contributory negligence was properly submitted to the jury.
    3. Same—Charge.
    Where the court has charged, at defendant’s request, that the deceased was bound to take all precautions which the surrounding circumstances would permit, and that it was his duty to use every precaution and make use of his senses, both of sight and hearing, so far as he could, it is not error to refuse to charge that if any obstruction to the view existed it was his duty to look when those obstructions were passed, and if they were of a temporary nature that it was his duty as matter of law to wait until they ceased to obstruct the view before taking the observation.
    Verdict for $1,558, taken at the Chemung circuit in favor of the plaintiff; appeal from the judgment entered thereon. Action for alleged negligence in causing the death of the intestate.

      Diven & Redfield, for app’lt; Babcock, Baxter & Gibson, for resp’t.
   Hardin, P. J.

When the plaintiff rested the defendant moved for a non-suit on the following grounds: “ (1) That the evidence does not clearly show negligence on the part of the defendant. ■(2) That the evidence does not affirmatively show freedom from negligence on the part of the deceased. (8) That the evidence does ■clearly show negligence on the part of the deceased.” The court remarked, viz.: “ I think I will postpone the decision of the motion until after the evidence of the defendant is in.” At the close ■of the defendant’s evidence the counsel for the defendant renewed the motion on the same grounds, and it was denied, and the defendant took an exception. When the accident occurred defendant’s passenger train was moving south on the “ east bound track ” at a speed of forty miles per. hour, or fifty eight and one-half feet per second, and when the locomotive of that train reached Oak Eidge Crossing it collided with the team and wagon being driven by the deceased in the highway which crossed the track. When the deceased had reached a point twenty-eight feet from the east rail of the west bound track he stopped his team and waited until a freight train, which was moving in the opposite direction, had crossed the highway; and when the rear of the freight train had passed 266 feet from the crossing the deceased “ then raised up and looked both ways, up and down, east and west. He was standing up when looking up and down the track ; six or seven car lengths I should think from the highway where he crossed. Then he started his team over the track, and just as his team was on the track he looked up, and saw this train coming so fast that he just raised up his hands and made a spring to escape with his life, and the train struck him just as he jumped. * * The body of Brway lay between the two tracks about ninety feet from the crossing where he was struck.” The witness from whose testimony the’quotation has just been made added: “ When this train was approaching this crossing I did not hear any whistle blown or bell rung by this passenger train going east. The train was a Lehigh Valley passenger train. It was running very fast.” The freight train was moving at about-twelve milés per hour, and it is claimed that it was distant from the highway 518 feet when the collision occurred. In the course of the charge delivered to the jury the trial judge instructed them that the question for them to consider was whether the defendant had been, under the circumstances of the case, guilty of negligence, and whether reasonable prudence required the ringing of the bell or the blowing of the whistle ; ” he said: “ If it did, gentlemen of the jury, and this defendant has failed to do that which reasonable prudence would require under the circumstances-surrounding this case, then the defendant has been guilty of negligence ; but if they have done all that reasonable prudence required under the circumstances surrounding this case, then the defendant is not guilty of negligence, and this plaintiff cannot recover.”

It is now insisted in behalf of the appellant that the evidence did not warrant the jury in finding that the bell on the engine which caused the injury was not rung, and our attention is called to the rule laid down in Culhane v. N.Y. C. & H. R. R. R. Co., 60 N.Y., 133 ; MeKeever v. N.Y. C. & H. R. R. R., 88 id., 667; Hoffman. v. Fitchburg Railroad Co., 51 St. Rep., 245; and it is claimed that because several witnesses in behalf of the defendant testified that the bell was rung that the evidence given on the part of the plaintiff' was insufficient to carry the question to the jury. Several witnesses were called on the part of the plaintiff who testified they did not hear the bell, rung and gave facts and circumstances-explanatory of their positions and opportunities for hearing it rung and to enable them to determine whether it was rung. Besides these witnesses the plaintiff called the witness Zacariah Roy,, who testified that be was on the wagon next to the deceased and that he saw the freight train, and that the deceased stood at the-crossing at the same time the freight train was passing, and that “ he was sitting down against the corn and he sat there until the-freight train had passed west and the caboose had gone by. Then-he raised up and looked up and down the track, east and west; then he started his team.” After detailing the particulars of the-collision the witness added: “ This passenger train was going very fast. When it was passing, or approaching this crossing, that passenger engine did not ring the bell or blow the whistle.” With this testimony in the case, as well as the other evidence bearing upon the question, we think it was not error to submit to the-jury the question as to whether the bell was rung or the whistle ■sounded, and whether the omission thereof, under the circumstances, was negligence on the part of the defendant.

(2.) The defendant insists that the plaintiff was guilty of contributory negligence and that the facts and circumstances disclosed -did not warrant the jury in finding the intestate free from contributory negligence. A careful statement has been made of the speed of the train and the estimated speed of the team when approaching the point of collision, and upon calculations based thereon it is insisted that the deceased was guilty of negligence ■either in not looking and seeing the approaching train or in having looked at a point where he could have saved himself from accident and that he therefore was guilty of contributory negligence. From the nature of the circumstances referred to the demonstration cannot be made absolutely certain, and therefore the trial judge was warranted in refusing to take the question of contributory negligence from the jury.

In Massoth v. D. & H. Canal Co., 64 N. Y., 524, Allen J.,said: ■“ It does not necessarily follow from the fact that a skilled engineer can demónstrate that from a given point in a highway the track of a railroad is visible for any distance, that an individual in charge of a team approaching the track is negligent because he does not from the same point see a train, approaching at great speed, in time to avoid a collision; and it is not enough to disturb a verdict of a jury in this court, in which legal errors only can be corrected, that the questions of fact are doubtful and that a different result might have been reached. There was no error in the refusal to nonsuit on account of the alleged contributory negligence of the deceased or Smith, his employer.”

(3) Appellant calls our attention to Heaney v. Long Island Railroad Company, 112 N. Y., 122; 20 St. Rep., 296'; in that case the deceased started to cross the defendant’s track just after a train had passed, “ and the smoke from its engine settled down behind it upon the road so as to temporarily obscure objects in the line of vision; the deceased, however, appears to have gone ahead, and while upon the north track was struck and killed ; ” and under those circumstances the court, in the course of its opinion, observed that it was “ his duty to await the disappearance of the smoke and thus be reasonably sure that he had a clear crossing.” The features of that case are different from this one.

Our attention is also directed to Foran v. N. Y. C. & H. R. R. R. Co., 64 Hun, 510; 46 St. Rep., 423; that case also differs from the one before us, as it appeared in that case that “ except for the smoke the plaintiff, who went onto the track and was injured, could have seen the train,” and it was, therefore, held that it was his duty to wait until the smoke lifted. And it was held that his failure to do so amounted to contributory negligence. In the case in hand the deceased waited until the train had passed so as to leave an unobstructed view of the tracks for a sufficient distance to authorize the jury to find that a person of reasonable caution might believe- that the tracks were free and that it was safe to attempt to cross them. If the defendant had sounded the whistle or rang the bell his attention might have been arrested at a point where he could have escaped the collision, and the jury may have found that the negligence of the defendant in the premises was the occasion of the collision. This case differs from Daniels v. S. I. R. T. Co., 125 N. Y., 407 ; 35 St. Rep., 435; as in that case it affirmatively appeared the deceased “ proceeded -to cross the track immediately after the down train passed the crossing without looking up the road.”

(4.) After the delivery of the body of the charge to the-jury, the counsel for the defendant called attention to the expression in the charge as “ to the care of an ordinary prudent man; ” and asked the court “ in connection therewith to charge that he must take all precautions which the surrounding circumstances would permit, and that it is his duty to use every precaution, and make use of his senses, both of sight and hearing, so far as he can ; ” and in response thereto the court observed, “ I will so charge; ” thereupon the defendant’s counsel requested the court “to charge that if any obstruction to the view existed just as he approached the track it was his duty to look when those obstructions were passed, and if they were of a temporary nature that it was his duty, as matter of law, to wait until they ceased to obstruct his view before taking the observation required of him; ” in response to that request the court said : “I decline, exceptas already charged.” It is to be observed that the court had just instructed the jury “ that he must take all precautions which the surrounding circumstances would permit,” and that it is his duty to use every precaution.

We are of the opinion that the judge was not calléd upon tore-peat the substance of his charge nor to use the exact words of the request, having already embodied in the instructions given to the jury the essential rules of law relating to the obligations of the defendant and of the deceased. We think the exception is unavailing and that the verdict should remain.

Judgment affirmed, with costs.

Merwbst and Parker, JJ., concur.


author: Per curiam.

text:
    Alfred Higgins, Resp’t, v. Jacob Crouse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Limitation—Discovert of fraud.
    Plaintiff brought this action to rescind a sale of corporate stock made in 1865, on the ground of fraud, and claimed that, as he did not discover the fraud until 1889, he had a right of action under § 382, sub. 5 of the Code. The evidence showed that no dividends or assessments were made on the stock, that plaintiff resided in the same city with the corporation’s officers and could have ascertained at any time when it stopped work, and that in 1871 he had made up his mind that his money was lost. Held, that plaintiff’s delay showed a lack of reasonable diligence and that the action was barred, as the statute of limitations began to run from the time when, by reasonable diligence, knowledge of the fraud ought to have been obtained.

      (Higgins v. Crouse, 63 Hun, 134; 44 St. Rep., 151.)
    Appeal from a judgment entered upon a decision made at the Onondaga special term December, 1892. When the plaintiff rested the defendant moved for a non-suit upon several grounds, which was denied in the following language: “I think this case should go to the court of appeals; 1 will deny the motion.” The defendant took an exception. A similar motion was made at the close of the evidence and an exception taken. Several requests to find were refused by the trial judge, and exceptions to the refusals, and also to the findings as made, were filed. Plaintiff’s complaint alleges that the defendant perpetrated a fraud upon him in 1865 in making representations as to 150 shares of the capital stock of the Shaffer Parm Oil Creek Company of Pennsylvania, sold by the defendant to the plaintiff for the sum of $1,200, and seeks to have that sale set aside and cancelled, and to recover of the defendant the $1,200.and interest thereon. The answer contained denials and a defense of the statute of limitations.
    Waters, McLennan & Waters, for app’lt; T. K. Fuller, for resp’t.
   Per curiam.

Upon a former appeal the" question relating to the statute of limitations was examined and an opinion delivered which is found reported in 68 Hun, 134; 44 St. Rep., 151. No additional evidence sufficient to take the case away from the principle laid down in the decision made upon the former appeal was given. It is, therefore, the duty of this court to adhere to the decision made then; and applying it to the case before us, it leads to a new trial. See Higgins v. Crouse, 63 Hun, 134; 44 St. Rep., 151; Foot v. Farrington, 41 N. Y., 164; Weaver v. Haviland, 68 Hun, 376; S. C., Combined Official Series of N. Y. State Reports, 376; S. C., 52 St. Rep., 311; Corn v. Rosenthal, 51 id., 858.

Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.

Hardin, P. J., Merwin and Pabkeb, JJ„, concur.


author: Kennedy, J. Hardin, P. J.

text:
    J. Emmett Wells, Ex’r of Samuel H. Hinsdell, Deceased, Resp’t, v. The Town of Salina et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Towns—Refusal to audit claims—Action to compel audit.
    Where the board of auditors of a town refuse to audit a claim and adjourn sine die, and the claim would be barred by the statute at the next annual meeting of the board, the holder of such claim may maintain an action in equity, in which the facts relating to the claim may be determined and the board directed to audit it
    2. Limitation—Attorneys.
    The statute of limitations does not begin to run against a claim for services of an attorney until the determination of the action in which such services were performed.
    3. Towns—Bar.
    A judgment in an action upon notes i=sued by a town for money borrowed to pay the expense of a litigation, adjudging that the town had no authority to borrow money, and was therefore not liable on the notes, is not a bar to a subsequent action in equity by the holder thereof as the equitable owner by subrogation of the bills to pay which the money was borrowed.
    Appeal from a judgment entered upon a decision made at the Onondaga special term, entered Hovember, 10, 1892, adjudging “ that the defendant, the town of Salina, pay the said plaintiff "* * * the sum of $6,665.96 with interest ” besides the costs, . and “ that the board of town audit of said town audit and allow •said judgment as a demand against said town.” It was found as a conclusion of law: “ That by reason of the fact that the moneys advanced by plaintiff’s testator to the supervisor of said town and upon its credit were used by him to satisfy a valid liability of said town to one of its creditors for legal services and disbursements, the plaintiff became in equity subrogated to the rights and demands of such creditor against the town, to the extent of his advances, and an equitable assignee thereof to that amount.” It was also found “ That the said demands of said plaintiff sued for • herein were duly presented to the board of town audit of said town at its annual meeting in November, 1890, and audit and allowance of the same duly demanded, in compliance with the •statute ; that said board refused to proceed and audit the same.” It is also found that a resolution was passed by the town whereby the town assumed the prosecution of an action brought by Alvord and Pitcher “ to test the validity of said bonds issued by said town, and employed said Stephens to prosecute the same; and thereupon became liable to pay said Stephens whatever his services were reasonably worth in the prosecution of said action •and his disbursements made therein whenever said action should be finally determined, and said services and disbursements became and were a legal obligation against said town." It was also found as a conclusion of law “ That said town by the passage of said resolutions hereinbefore set out, and the acts of its supervisor, became liable to said attorney Stephens for the value of his services and disbursements in prosecuting said action in the name of Alvord and Pitcher, and the amount and value of the same became and was a valid obligation against it.” In the complaint it is alleged that plaintiff’s testator, in good faith, had advanced moneys upon certain notes which the court of appeals had ■decided “ were not obligations of said town, and that the said town was not bound thereby.”
    It was further alleged in the complaint that the plaintiff's testator “ upon the advancing of said moneys as aforesaid, and the expenditure of the same in the prosecution of said action, became the equitable assignee of said Stephens’ claims against the town for services performed and moneys disbursed in said action to the amount of said moneys so advanced by him.” It was also alleged that on the 13th of June, 1890, “ said Stephens duly assigned to this plaintiff as such executor all his demands against said town for services performed and moneys disbursed as aforesaid, except, etc.” It was alleged that the town auditors “refused to receive or consider said claim, or place the same on file, and the said claim was not received or considered' by them; and that they afterwards, and after considering and passing upon other claims against said town presented for the first time at the ■same adjourned meeting of said auditors, adjourned 1 sine die' without so doing.” It was further alleged that the plaintiff had been unable to procure the audit of the same in the manner provided by statute, and “ that he has no remedy at law in the premises.” It was alleged that the town profited by the services rendered to it which were paid with the moneys mentioned, “ and saved many thousands of dollars ” by a compromise, using the litigation had for that purpose. The answer contained numerous denials, and set up the action upon the notes as a bar, and also set up that the plaintiff’s supposed causes of action “ did not accrue at any time -within six years next before the commencement of this action.” It did not set up as a defense that the plaintiff had a probable remedy at law; nor did it set up the ten years statute; nor that the plaintiff had a remedy by mandamus. The report of the former case is found in 119 Ñ. Y., 280; 29 St. Rep., 782. Exceptions were filed to the decision of the trial court, and to refusals of certain requests as to findings of fact, and refusals to find certain propositions of law.
    The following is the opinion of the court at special term :
   Kennedy, J.

It is held in Wells v. Town of Salina, above referred to, that the defendant in that case was not liable to the plaintiff’s testator upon the notes mentioned, nor was it liable in an action at law for money lent and advanced by him, and used to pay the costs and expenses of the action brought by Francis Alvord, at the time supervisor of said town,and Leman B. Pitcher, against the Syracuse Savings Bank and others, holders of the bonds referred to, for their surrender and cancellation, upon the ground that the special contract on the part of the town in relation thereto was illegal. One of the questions to be determined is, conceding, as was held by the court of appeals, that the prosecution of the action of Alvord and Pitcher against the holders of the bonds issued by the town of Salina, to compel their surrender and cancellation, was assumed by said town, and that the same was prosecuted by it and for its benefit, and to relieve itself from its apparent liability on said bonds, and that such action was so prosecuted for a town purpose, within the powers conferred upon town municipalities by the Revised Statutes, is said town, although not liable in an action at law for money advanced to it at its request, because of a want of power in it to enter into said contract, still liable in equity to be charged with the money-so advanced by a stranger in the proceedings, in good faith and actually expended by it in and for a town purpose ? It would seem eminently just that a town which has received the money of a party, advanced to it at its request, in good faith, and relying upon its undertaking to repay the same to the party advancing it, and which money has been applied by the town to discharge its liability incurred in the prosecution of an action for a town purpose, should refund the same to the party advancing it, and thej court should be vigilant in its efforts to discover a way to compel the repayment, if one in fact exists, and the town should not be able to effectually shield itself from its moral liability to pay by invoking the principle of ultra vires. The plea of ultra vires should not, as a rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong. Rider Life Raft Co. v. Roach, 97 N. Y., 378. All corporations, whether municipal or business, are the creatures of the statute; every power which they possess, and which they can legally exercise, is derived from the statute; and, while purely artificial in this regard, the same moral obligation to faithfully discharge their undertaking honestly entered into, and being within the purpose for which they were created, exists, binds and controls them the same as natural persons. And while the same rule exists in regard to legal obligations, when applied to contracts made beyond the power and authority conferred in municipal as in business corporations, the rule ultra vires, it seems, is more strictly applied to the former than to the latter. Dill. Man. Corp. §§ 457, 936. In § 936 it is said : “ Where an act, in its external aspect, is within the general powers of a corporation, and is only unauthorized because it is done with a secret, unauthorized intent, the defense of ultra vires will not prevail against a stranger who in good faith dealt with it without notice of such intent. A municipal corporation, as against persons who have acted in good faith, and parted with value for its benefit, cannot, unless by virtue of some statutory provision, set up mere irregularities in the exercise of the power conferred. ” In the case of Hitchcock v. Galveston, 96 U. S., 341, the question of the liability of a municipal corporation upon contracts entered into by it, not within the provisions of the city charter, was considered. In that case the city entered into a contract with the plaintiff to pave certain streets. It had the power to make a valid contract for this purpose, but the city in the contract agreed to make payment for the work in negotiable-city bonds payable at a future day, and it was objected by the city that, since no express power was given to issue bonds for the purpose, the whole contract was inoperative and void. In his opinion, Justice Strong, speaking for the court, among other things says : “ If it be conceded that the city has no power to issue the bonds described in the ordinance and mentioned in the contract, it does not follow that- the contract was wholly illegal and void, or that the plaintiff has no rights under it. It is enough for them that the city council have power to enter into the contract for improving the sidewalks ; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, and assume liabilities; that the city had received, and now enjoys, the benefit of what they have done and furnished; that for these things the city has promised to pay ; and that, after having received the benefit of the contract, the city has broken it. It matters not that the promise to pay was in a manner not authorized by law. If payment cannot be made on bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the case.” In State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, it is said that although there may be a defect of power in a corporation to make the contract, yet if a contract made is not in violation of its charter, or of any statute prohibiting it, and the corporation has, by promise, induced a party, relying on the promise and in execution of the contract, to expend money and perform his part thereof, the corporation is liable on the contract. To the same effect, Oneida Bank v. Ontario Bank, 21 N. Y., 490, Many other cases might be cited holding the same doctrine.

It is only upon contracts which are ultra vires in the true sense of that expression, that is, upon contracts relating to matters wholly outside of the chartered powers of the corporation, that no liability, legal or equitable, exists against the municipality. The contract in question does not relate to matters wholly outside of the chartered powers of the corporation. On the contrary, it relates to a matter within them, and is only rendered invalid in the manner adopted for procuring the money. The town had the charter power to bring and prosecute an action to rid itself of the alleged liability it had incurred in issuing the bonds, and it had the power, in the way provided by the statute, to raise the money necessary to defray the expenses of such prosecution, viz., by tax levied and collected; but it had not the power to borrow money for that purpose, and it was not, therefore, liable in an action at law for money so borrowed. The money advanced by the plaintiff’s testator was obtained from him for the use of the town of Salina, pursuant to resolutions passed by the inhabitants of said town at regular annual town meetings held therein in the years 1881 and 1882. These seem to have been regularly and legally adopted in pursuance of a power granted the corporation by statute. In supposed execution of the directions contained therein, notes were made, signed by the supervisor in his official capacity. These notes were discounted by the plaintiff’s testator in good faith, and in reliance upon such resolution, incorporated in and forming a part of the notes, and •in the belief that the action of the electors of the town was legal and binding upon it, and that it would discharge the obligation incurred. The money was paid over to the supervisor, or to the attorney, Stephens, and by him expended for and on behalf of the town, to defray the cost and expenses of prosecuting the action brought to annul its bonds, and for a town purpose, and it received the benefit resulting from said prosecution in the refunding of $120,000 of its bonds drawing seven per cent annual interest, and the exchange of other bonds of the town for them drawing but four per cent interest. Under these circumstances, should the town be permitted to repudiate the moral obligation, at least, to pay the money so advanced for its use and benefit, upon the ground that its contract to borrow the money was ultra vires ? Or will this court, in the exercise of its equitable power, charge the town with an equitable obligation to discharge said liability, and to pay the money so advanced ? It will be borne in mind that the money in question could have been raised by the town by tax levied upon the taxpayers therein. They, by their resolutions adopted, expressed their willingness to be taxed for that purpose. The burden is not one, therefore, forced upon them against their will or wishes, but is one willingly assumed. The case is therefore one, as before stated, where the equity power of the court should be exercised to prevent injustice, if such power exists. The broad proposition is asserted by text writers upon the subject: Persons who have in any way advanced money to a corporation, which money has been devoted to the necessities of the corporation, are considered in chancery as creditors of the corporation, to the extent to which the money has been so expended.” Green’s Brice’s Ultra Vires, 623; Talmage v. Pell, 7 N.Y., 328; Sackett's Harbor Bk. v. Codd, 18 id., 242. The question whether a particular contract is binding on á municipal or public ■corporation or not is to be tested by determining whether, in the true construction of the charter and the legislation applicable thereto, it relates to matters within the corporate powers and duties. Dill. Mun. Corp. (4th ed.), § 936. The following proposition is advanced, relating, it is true, to dealings with individuals, but in principle it is suggested to he equally applicable to corporations, municipal or otherwise: “ Whenever money is loaned or advanced to a person under disabilities and incapacitated from making a binding contract, as to an infant, lunatic, or the like, and the money is thus loaned or advanced and actually used for the purposes of paying for necessaries or the necessary expenses of the party borrowing, although no legal debt arises, and the lender can maintain no action at law to recover back the amount, yet, since his money was advanced and used for the purpose of paying debts which would -be .recoverable at law, he can sue in the court of equity, and stand in the jfiace of those creditors whose debts have been so paid, and recover back the amount of his advances. An equitable right thus arises upon the principle of subrogation or equitable assignment.” 3 Pom. Eq. Jur., § 1300. See cases cited in note to section. The doctrine of subrogation, being a creature of the courts of equity, is to be so administered as to secure essential justice without regard to form, and is independent of any contractual relations between the parties to be affected by it. McNeil v. Miller, 2 S. E. Rep., 335; Mathews v. Aikin, 1 N. Y., 595. I am therefore of the opinion that the plaintiff in this case, as the executor of Hinsdell, who in good faith, and in reliance upon the action of the inhabitants of the town legally assembled in town meeting, advanced the money for the town, and the same having been used and appropriated for the benefit of the corporation and for town purposes, is entitled to be subrogated to all the rights the creditors who received the money had against it for obligations legally contracted by it for town purposes. The fact that the money advanced by the plaintiff’s testator was used to pay its obligations legally incurred did not operateMo cancel such obligations, so as to prevent such right of subrogation. ■ The plaintiff’s intestate stands in as favorable position to enforce his equitable rights against the town as though he had actually paid its obligations legally incurred to the creditor, and taken an assignment of the demand. The fact that instead of going to the creditor, and paying him, Hinsdell furnished the money to the town, or its attorney in the action, to make such payment, it seems to me, does not in any manner change the rights of the parties. The plaintiff is the actual assignee of the debt owing to Stephens, its attorney in the litigation, for services rendered by him, and disbursements made in and about the same, and stands in a position where he can in equity enforce the obligation. In my judgment it would be the extreme of injustice, in light of the fact that the town has received the money in question, and used it, as far as, under the circumstances, it might, to discharge a legal obligation against it, to allow it to say: “ It is true the town was liable for the debt. It is true you, the plaintiff, advanced the money in good faith, and upon our request, with which we discharged the obligations againbt it, but, because we in fact had no legal right to borrow your money for that purpose, wo will not repay you for your advances so made.” I should feel compelled to struggle long and hard to find some way under the circumstances to compel the town to do justice, and I cannot but think a court of equity has jurisdiction of the question, and the power to compel justice to be done.

The more embarrassing question is whether the action brought by the plaintiff against the town, to recover of it for money lent, advanced to it, and at its request, and prosecuted to a final judgment against the plaintiff therein, is a bar to this action. I am disposed, under the circumstances of this case, to hold that it is not. This action differs from the former action in that it is for a different cause of action, this being to force the demands Stephens as attorney had against the town, for services rendered by him, and for money advanced in the prosecution of an action which the town could legally prosecute, and in which it could incur vaild obligations in and about doing so, and to enforce these obligations which the holder could enforce against it, and of which the plaintiff has become the owner, as the equitable, as well as-legal, assignee of the same. Zoeller v. Riley, 100 N. Y., 102 - Calhoun v. Millard, 121 N. Y., 69; 30 St. Rep., 759. As against the claim of Stephens, the attorney for the town, the statute of limitations did not begin to run until the final determination of the action in which the services were rendered and disbursements; made. The case of Alvord v. Bank was argued in the court of appeals on the 11th day of March, 1885, and was decided on the 14th day of April, 1885. 98 N. Y., 599. This action was commenced on the 10tli day of March, 1891. The six-years statute of limitations is therefore not available to the defendant. It appears that at a regular meeting of the town board of the town of Salina, held on the 13th day of BTovember, 1890, all the members being present, a detailed statement of the demand was presented to it, with the request that said board would proceed and audit the same. This the board refused to do, upon the ground that the town was not indebted thereon, or liable to pay the same, or any part thereof. This seems to have been a compliance with requirements of the statute in that regard. If right in the above conclusions, it follows that the plaintiff is entitled to j udgment. The form of the judgment will be settled by me. The attorney for the plaintiff will prepare the necessary findings, and, unless the same are agreed upon by the attorneys for the respective parties, the same will be settled by me on two days’ notice.

Hancock, Beach & Devine, for app’lts: Kennedy, Tracy, Mills & Ayling, for resp’t.

Hardin, P. J.

On the 13th day of November, 1890, the plaintiff presented a detailed statement of his claim to the board of town audit and requested them to audit and allow his claim; they refused to do so and adjourned sine die. In People v. Wells, 4 Hun, 94, it was suggested that town auditors could not hold special meetings, and that a mandamus requiring them to reconvene and audit a claim was improper, and that it should have required them to audit the claim at the next annual meeting. If plaintiff had waited the assembling of the next annual meeting of the board in November, 1891, he would have been met utith the defense of the statute of limitations; instead thereof he commenced this action on the 10th of March, 1891, while there was no town board in session, and when, under the statutes, none would be in session until the following November. The answer of the defendants contains no allegations that the plaintiff had a remedy by mandamus; nor does the answer contain a defense that the plaintiff has an adequate remedy at law. Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845; Ostrander v. Weber, 114 N. Y., 95; 22 St. Rep., 979. Inasmuch as the claim for services of the attorney accrued in April, 1885, the same would have been barred by the six years statute if plaintiff had delayed until November, 1891, for the assembling of the town board; it is difficult to see why the defendants could not avail themselves of all defenses to this action which would have been open for them to present against the proceeding by way of mandamus to compel the board of town audit to consider and allow the claim of the plaintiff. Whether the plaintiff is entitled to an equitable subrogation or not is a legitimate question for the determination of a court of equity. Plaintiff has alleged that he was entitled to such subrogation and the defendants have taken issue thereon, and it has been determined in the trial of the action adverse to the defendants. Under such circumstances, inasmuch as the town board had refused to audit the claim, it is difficult to see why a court of equity has not jurisdiction to ascertain the essential facts relating to the claim and make an adjudication thereon and to direct that the town board proceed to audit the claim. Inasmuch as the town board did not act upon the claim, it may not be said that what took place before the board was an adjudication which was exclusive and formed a bar to any further proceedings on the part of the plaintiff to have his claim established. The People v. Barnes, 114 N. Y., 317; 22 St. Rep., 164; 23 id., 795. If it be assumed that the plaintiff is entitled to recover in either aspect of the case the six years statute of limitations does not stand in his way, as this action was commenced within six years from the 24th of April, 1885, when the services of Mr. Stephens were completed.

In Adams v. Fort Plain Bank, 36 N. Y., 255, it was held that until the determination of an action in which the services of an attorney have been had the statute of limitations does not begin to run. It is insisted that the former action based upon the notes held by the plaintiff is a bar to this action. By the opinion delivered in that case, 119 N. Y., 280; 29 St. Rep., 732, it appears that that was an action at law and was tried as such, and it was intimated that under the pleadings in that case the equitable aspects could not be considered, and the essential point discussed in the opinion was, that the town was not liable upon the notes as it had no express authority to borrow money. It was observed incidentally in the opinion that “ The bills for services have never been, audited or allowed in the mode prescribed by the statuteand in that opinion it was said as follows: “ But even if we should assume that it had been sufficiently established that the town had the full benefit of the money thus borrowed, that would not authorize the maintenance of this action. Even if the plaintiff’s testator by the payment of the expenses of the litigation became the equitable assignee of the bills representing such expenses, and mi girt have taken and presented those bills for audit to the board of town auditors, yet he never did so. He did not bring his action upon the theory that he was an equitable assignee of those bills, and he gave no proof which entitled him to recover as an equitable assignee, and the case was not tried upon that theory.” The language just quoted seems to justify an inference that that action was disposed of solely as an action at law, and that the theory upon which the present action is founded was not considered, as it was not supposed to be within the issues then before the court, and thus it is apparent that the present issues were not litigated under the pleadings in that case; therefore, that action is not a bar to the one now presented. Embury v. Conner, 3 Com., 511 ; Palmer v. Hussey, 87 N. Y., 303 ; Belden v. State, 103 id., 1; 3 St. Rep., 8. The language already quoted from the opinion delivered in the court of appeals also seems to furnish a warrant to this court to leave the question as to the plaintiff’s right to the relief awarded to rest upon the principles and authority as presented in the opinion delivered by Kennedy, J., at special term. We therefore forbear any further discussion ■of the questions presented to us by this appeal. The views already expressed, as well as those contained in the opinion at special term, lead to an affirmance.

Judgment affirmed, with costs.

Merwin and Parker, JJ., concur.