text:
    The People ex rel. Patrick O’Connor v. Leonord R. Welles.
    Sup. Ct. 2 D.
    July 26, 1895.
   Ho opinion. Determination confirmed, without costs. All concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel William J. Roberts et al v. Leonard R. Welles.
    Sup. Ct. 2 D.
    July 26, 1895.
   Ho opinion. Determination confirmed, without costs. All concur.


text:
    James H. Perkins v. James Gordon Bennett.
    Sup. Ct. 2 D.
    June 14, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


author: Conlan, J.

text:
    John R. Potts, App’lt, v. Richard Cuff et al., Resp’ts.
    N. Y. C. Ct.
    June 25, 1895.

      George W. Glaze, for app’lt; Foley & Wray, for resp’t.
   Conlan, J.

— Appeal from a judgment dismissing plaintiff’s complaint. The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event, on the authority of Beckett v. Place.


text:
    William A. Randall v. Charles R. Cline.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Reargument ordered.


text:
    Jacob W. Rein v. John Scott.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Motion granted, with $10 costs.


text:
    Thomas J. Reynolds, App’lt, v. Theodore F. Romeyn, Resp’t.
    Sup. Ct. 5 D.
    January, 1895.
   No opinion. Order appealed from affirmed, with §10 costs and disbursements.


author: Dykman, J.

text:
    William L. Rich v. New York Cent. & H. R. R. Co.
    Sup. Ct. 2 D.
    July 26, 1895.

      Cowen, Dickerson & Brown, for app’lt; Frank Loomis, for resp’t.
   Dykman, J.

— This is an appeal from the judgment entered upon the dismissal of the complaint at the close of the testimony on the part of the plaintiff upon the trial at the circuit before a jury. When this case was in the court of appeals, it was stated in the opinion delivered there that the complaint was for a tort, and that the tort charged was that the defendant, in order to reach a lawful result, planned a fraudulent scheme for its accomplishment by unlawful means, and through an injury to the plaintiff wkiclrwould strip him of his damages by a complete sacrifice of his property, by means of a plan embracing a refusal to open the restored depot at the foot of Main street, the driving of the plaintiff’s mortgage to a foreclosure and stripping the plaintiff of his property, and all this by the defendant’s direct instigation. 87 N. Y. 882. The evidence necessary to support the charge was declared by the court of appeals to be such as to establish a scheme of fraud, of which, if established, the defendant’s procurement of the foreclosure and sale was a part. The court said: “If it is made plain that the mortgagee would have waited, but for the fraudulent scheme and conduct of the defendant, that is enough.” The court further declared that “proof of the contract and its breach, of the 'delay in restoring the depot and the reason therefor were essential links in the chain. If the proof should go no further a nonsuit would he proper.” Under that standard, thus set up, it was incumbent upon the plaintiff to establish a scheme of fraud carried out by the defendant or its agents without intent to deprive the plaintiff of his property by inciting a foreclosure of the mortgage of the Mutual Life Insurance Company, and a sale of his property thereunder. So far from meeting the requirements and sustaining the burden thus placed upon the plaintiff, the case is destitute of proof to convict the defendant of any of the acts charged against it in the complaint. The principal charge in the complaint against the defendant is that it incited the foreclosure of the mortgage held by the Mutual Life Insurance Company against the property of the plaintiff, and caused his property to be sold under a judgment, and the record is destitute of any proof to connect the defendant with that transaction. There was no pro if to show any connection of the railroad company with the various proceedings of the insurance company in the foreclosure suit, or even that it was in possession of any knowledge or notice thereof. The property of the plaintiff was injuriously affected by the change in the grade of Main street at the railroad station in the city of Yonkers, and the sale under the mortgage of the insurance company was ruinous to him, but the evidence in this case fails to connect the railroad company with this transaction in any manner. In fact, neither of these disasters befell plaintiff by reason of anything done by the company. Great indulgence was shown to the plain-by the trial judge upon the trial of this action. He was permitted to reopen the case, and introduce further proof, but the effort in that direction failed, and the trial judge was left no discretion except to dismiss the complaint, which he properly did, and the judgment must be affirmed, with costs.


author: Per Curiam.

text:
    Minnie Rinaldo, Resp’t, v. Manhattan Ry. Co. et al., Applts.
    Sup. Ct. 1 D.
    June 14, 1895.
    W. H. Godden, for app’lts; E. M. Felt, for resp’t.
   Per Curiam.

— After an examination of the evidence in this case it seems to us apparent that it does not justify the awards which have been made, either for rental damage or for fee damage. It seems to be doubtful whether, from the evidence, any such damage lias been sustained. The judgment seems to rest upon inference rather than upon proof. We have endeavored to ascertain from the evidence some basis upon which a reduced amount might be awarded; hut we have been unable to arrive at any conclusion based upon such evidence. It seems hardly necessary to discuss in detail the evidence, for the purpose of showing the particular points in which it is defective, as it seems to ns, upon a -consideration thereof, that it has little or no probative force. We are of opinion that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    August Roediger, Resp’t, v. Patrick J. Gleason et al., App’lts.
    Sup. Ct. 2 D.
    July 26, 1895.

      George W. Stephens, for app’lts; H. Randolph Anderson, for resp’t.
   Dykman, J.

— This is an appeal from a judgment and order entered upon a decision of a justice of this court, after a trial at the special term. The judgment and order should be affirmed, with costs, upon the opinion of the trial judge.


text:
    Francis J. Romaine v. Annie Decker.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Reargument ordered.


text:
    W. Emden Roosevelt et al., Resp’ts, v. William C. Leslie et al., App’lts.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Roscoe Water Co., App’lt, v. Louis Sipple, Resp’t.
    Sup. Ct. 3 D.
    July 6, 1895.
   No-opinion. Award and judgment affirmed, with costs.


text:
    Matthias Ruppert v. Brooklyn Heights R. Co.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    St. Louis Stamping Co., App’lt, v. Elwin S. Piper, Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.

      A. V. Briesen, for app’lt; Samuel Untermyer, for resp’t.
   Per Curiam.

— We do not think that an injunction pendente lite ought to he granted. The order appealed from should he affirmed, with $10 costs and disbursements.


text:
    Bernard Schaeffer v. Henry Erlenmayer et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. This motion is for Poughkeepsie. , We cannot, therefore, grant the motion.


text:
    Catharine Schoonmaker v. Leonard Blass.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Daniel Schout, App’lt, v. Conkey Ave. Savings, & Loan Ass’n, Resp’t.
    Sup. Ct. 5 D.
    June, 1895.
   No opinion. Judgment affirmed on opinion of Davy, J., at circuit.


author: Gildersleeve, J.

text:
    Peter Schutt, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Supr. Ct.
    June, 1895.

      Davies, Short & Townsend (Julien T. Davies amd A. T. Stoutenburgh, of counsel), for app’lt; R. W. G. Welling (E. A. Hibbard, of counsel), for resp’t.
   Gildersleeve, J.

— This is the ordinary equity action to restrain the operation of the elevated railroad of the defendants in front of the plaintiff’s premises, and to procure an assessment of rental damages sustained by the plaintiff, as incidental to the main relief. The premises in question are situated on the west side of Greenwich street, between Vestry and Desbrosses streets, and are 41 feet 8 inches on Greenwich street, by 80 feet in depth. The property consists of two adjoining brick buildings, and two actions were originally brought, hut, prior to the trial, were duly-consolidated into one action. The trial court fixed the sum to he paid by the defendants to avoid an injunction at $4,000, and awarded the sum of $2,543 for rental damages. The learned trial judge seems to have been guided by, and applied, correct rules of law in disposing of the issues raised, and of the motions presented for his consideration. The award for rental damages and the assessment fixed as a condition of avoiding the injunction are fully justified by the attorney. We can find no reason for disturbing the judgment. It should be affirmed, with costs to the respondent,


text:
    Eugene E. Seaman, App’lt, v. John P. Ficken, Resp’t.
    B. C. C.
    June 24, 1895.

      Jay S. Jones, for app’lt; Jacobs & Butcher, for resp’t.
   Per Curiam.

— In the case before us, it was just as necessary for the defendant to prove damages as it was to prove the fraud on the part of plaintiff. Testimony as to the value of the lots at Lindenhurst was competent, if given by an expert. We think that Air. McEwen was qualified to give an opinion as to their value, and that the exception at folio 122 of case was well taken. It does not become necessary to examine the other questions in the case. Judgment and order denying new trial reversed, and a new trial granted; costs to ■abide the event.


text:
    Julia B. Shearwood, App’lt, v. Eleanor Shearwood, Resp’t.
    Sup. Ct. 2 D.
    July 26, 1895.

      C. H. & J. A. Young, for app’lt; Ernest Hall, for resp’t.
   Dykman, J.

— This is an appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the trial term, and from an order denying a motion for a new trial on the minutes of the court. The action was brought to recover the sum of $3,000, upon an allegation that in the year 1891 the defendant promised to give the plaintiff’s testator, Jacob B. Shearwood, the sum of $3,000 out of the money received by her from her mother in consideration of services which he had performed for the defendant and for her mother prior to her death, and for the services which he promised to perform, and did thereafter perform, and for other good and valuable considerations. The answer denied the promise, and the other material allegations in the complaint. The case was tried at the circuit before a jury, and at the close of the testimony on the part of the plaintiff the complaint was dismissed on the ground of failure to prove the promise upon which the action was based, and, further, because there was no consideration for such promise. The dismissal was right. The cause is destitute of proof of any promise to pay any specific sum, and the law will not imply a promise to pay for the service on account of relationship of the parties. The judgment and order denying a new trial ■should be affirmed, with costs.


text:
    Roger M. Sherman, App’lt, v. Irving Grinnell et al., Resp’ts.
    Sup. Ct. 1 D.
    June 14, 1895.

      J. M. Smith, for app’lt; W. V. Rowe, for resp’t.
   Ho opinion. Judgment affirmed, with costs.


text:
    William H. Sherwood, App’lt, v. Tjark J. Houfman, Resp’t.
    Sup. Ct. 2 D.
    July 26, 1895.

      C. Gottschalk, for app’lt; Thos. E. Stewart, for resp’t.
   Dykman, J.

— This is an appeal by the plaintiff from a judgment of the county court of Kings county, in an action tried before the county judge and a jury. The action was originally commenced in a court of a justice of the peace, where the plaintiff recovered a judgment. Upon the appeal to the county court a new trial was had, and the plaintiff again recovered a judgment. Upon an appeal to the supreme court that judgment was reversed, and a new trial ordered, on the ground that the verdict was not warranted by the evidence. Upon the second trial in the county court, the evidence was substantially the same as on the first trial and the county judge directed a verdict for the defendant. From the judgment entered on that verdict, and from the order denying amotion for a new trial on the minutes of the court, the plaintiff has appealed. When this case was before us upon the former appeal, we decided that the plaintiff was not entitled to recover. As the testimony upon the second trial was substantially the same as upon the first, we take the same view of the case as we did before, when we decided that the plaintiff was not entitled to recover. The judgment and order denying a motion for a new trial must be affirmed, with costs.

Pratt, J., concurs. Brown, P. J., dissents on theground that the case was for the jury.


text:
    Pepina A. Silverman, Resp’t, v. Belle Heyman, App’lt.
    S p. Ct. 1 D.
    June 14, 1895.
   Ho opinion. Order affirmed, with $10 costs and disbursements.


text:
    Theodore V. Smalley, Plaintiff, v. Fulton Bank, Defendant.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order reversing judgment and ordering a new trial granted, with costs to abide event.


text:
    Matter of Alfred R. Smith, et al.

    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Decree affirmed, without costs. All concur.


text:
    Wilhelm Stabenau v. Atlantic Ave. R. R. Co.
    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Charles G. Stevens v. John L. Melcher.
    Sup. Ct. 1 D.
    December, 1894.
   No opinion. See memorandum on settlement of order. Memorandum for settlement of order: First. A reference will not be ordered as to insurance' premiums, as those only can be allowed which the record before us shows were paid; second, as to such amounts, we understand Mr. Zabriskie’s statement to be correct; third, in respect to the $90,000, the order will be in accordance with the suggestions in Mr. Hoadley’s proposed order; fourth, adopting such course as to the $90,000, there would seem to be no occasion for striking out from the adjudication designated “ tenth,” “ that the said $100,000 and interest thereon were paid on the 6th day of March, 1894,” but it should be modified by adjudging that said legacy was not fully paid on the 6th day of March, 1894.


text:
    William E. D. Stokes, Resp’t, v. Edward S. Stokes, App’lt.
    Supr. Ct.
    March, 1895.
    Defendant’s exceptions ordered to be heard in the first instance at general term.

      E. Cowen, for app’lt; G. H. Adams, for resp’t.
   Per Curiam.

— The court being divided, the defendant’s exceptions are overruled, and judgment for plaintiff is ordered, with costs.


text:
    John Sutherland v. City of Brooklyn et al.

    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Order reversing judgment and granting new trial, with costs- 1 to the appellant to abide the event.


author: Martin, J.

text:
    Wilson B. Taylor, Resp’t, v. Jackson T. Roe, App’lt.
    Sup. Ct. 4 D.
    July 5, 1895.

      R. R. Tousley, for app’lt; Newton R. Peckham, for resp’t.
   Martin, J.

— A careful examination of the evidence contained in the appeal book has led us to the conclusion that it was sufficient to justify the decision of the learned trial judge that the premises described had become and were a public highway. While there was something of a conflict in the testimony as to the facts bearing upon that question, it cannot be said that the findings of the court were against the weight of the evidence. Upon the facts as found, the court properly held that the locus in quo was a public highway, and it was, therefore, justified in'directing the judgment herein. We find no other exception that would justify us in disturbing the judgment, or that requires discussion. It follows, therefore, that the judgment should be affirmed. All concur. Judgment affirmed, with costs.


text:
    Catherine L. Tonjes, Resp’t, v. John H. Tonjes, App’lt.
    Sup. Ct. 2 D.
    February, 1895.
   No opinon. Judgment modified by reducing the alimony to the sum of $700 per year, and, so modified, affirmed, without costs.


author: Pratt, J.

text:
    Town of Newton, Resp’t, v. Thomas Auld, App’lt.
    Sup. Ct. 2 D.
    July 26, 1895.

      Roswell W. Keene, for app’lt; Clarence Edwards, for resp’t.
   Pratt, J.

— This case does not purport to contain all the evidence adduced on the trial. Regulations of the local board of health were read. In the absence of evidence to the contrary, we must assume that the property existed under chapter 661 of the Laws of 1898. We can see from the case that there was-sufficient evidence to justify the court in submitting the case to the jury. We-discover no error in the record. Judgment affirmed, with costs. All concur.


text:
    Abram Travis, App’lt, v. Robert Post, Resp’t.
    Sup. Ct. 2 D.
    July 26, 1895.

      Eugene B. Travis, for app’lt; William A. Jaycox, for resp’t.
   Pratt, J.

— This action was brought, apparently, and tried under those pro•visions of the Code relating to actions to compel the determination of claims to real estate. The parties own adjoining farms, and the only claim litigated was as to the precise line on which the division fence ought to be located. The defendant denied that he made any unjust claim to any of the plaintiff’s farm, and that was the issue submitted to the jury, as was proper in this form of action. It seems the plaintiff had put up a fence, and the defendant took it down, claiming it encroached upon his land. Trespass would have been a form of action, but, the case having been tried under another form, it must be determined as it is presented at the present time. The complaint did not describe the property which was said to be claimed by the defendant, as prescribed in this form of action (% 1511, Code), but it really alleged acts of trespass. The case was submitted to the jury, as I have before stated, under a charge which was not excepted to, and the verdict must stand, unless it appears that some error was committed upon the trial. The deeds of both parties coincided in their descriptions, but two surveyors, one on each side, disagreed as to a proper location of the lines, according to the courses and distances stated in the deeds, and the jury had to grope their way through the fog of expert testimony. The plaintiff insists that the verdict is against the undisputed facts. This claim cannot avail him, as the defendant testified that he made no claim except that fence was not located on the right line, and until the plaintiff established the fact that it was not located over npon the defendnnt’s land it could not be said that defendant claimed any of the land of the plaintiff. The plaintiff makes no points in his brief upon any exception taken upon the trial, and I assume they are abandoned. Judgment affirmed, with costs. All concur.


text:
    Orazio Valentine et al., Resp’ts, v. Richard B. Constantine et al., App’lts.
    Sup. Ct. 2 D.
    July 26, 1895.

      Moore, Wallace & Dudley, for app’lts; Richard B. Constantine, A. C. Astarita, for resp’ts.
   Pratt, J.

— We are of opinion that the referee’s conclusions are sustained by the testimony. Not only was there considerable evidence that Constantine had personal notice of the work done by the plaintiffs, but it seems pretty well established that the tenant had authority to make repairs, He made them for some years, and, until the present instance, his authority was never questioned. There are no exceptions that require notice, and judgment is affirmed, with costs. All concur.


author: Putnam, J.

text:
    William W. Van Keuren, App'lt, v. Peter Van Keuren, Resp’t.
    Sup. Ct. 3 D.
    July 6, 1895.

      O. P. Carpenter (D. M. De Witt, of counsel), for app’lt; G. R. Adams, for resp’t.
   Putnam, J.

— The affidavits submitted to the court below were conflicting. Those read by the plaintiff tended to show that defendant, on the trial in the county court, on the motion for a nonsuit being granted, in open court, waived all claims except as provided in the will of the deceased. The minutes of the court and the extracts from the stenographer’s minutes also tended to show such a waiver. But defendant claimed that the minutes in the court did not contain all that took place on the trial; that the waiver he made was only of the demands set up in the answer, and not of the cause of action for which the suit of Peter E. Van Keuren against Rachel Van Keuren and another had been brought. In his affidavit for defendant, Mr. Adams says in reference to the waiver made at the time the motion for a nonsuit was granted: “ That deponent expressly stated to the court, when the nonsuit was granted, that the defendant, by asking for the nonsuit, did waive the claims in the answer in the action, and the nonsuit would have the effect of a waiver, as there was a bar by statute of limitations for the commencement of a new action thereon; that deponent did not, by word or act, consent or say that the defendant waived anything, or claims further than as above stated, and did not intend to waive any other cause of action.” The court below probably relied upon the statement of the transaction in court, when the complaint was dismissed, made by Mr. Adams. Such statement was the more probable one. It was probable that, on granting the motion for a nonsuit, the learned county judge should suggest a waiver by defendant of his counterclaims set up in the answer. It would have been an unusual proceeding for the judge, as a condition of dismissing the complaint, to require defendant to waive claims not set up in the pleadings. We see no reason for overruling the conclusions reached by the court below on the conflicting affidavits. The order should be affirmed, with $10 costs and disbursements.


text:
    Matter of Van Vleck.
    Sup. Ct. 1 D.
    June 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Village of Flushing, Resp’t, v. Patrick Carraher, App’lt.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion for leave to go to the court of appeals denied.


text:
    Martin Walsh, Resp’t, v. Henry Savage et al., App’lts.
    Sup. Ct. 3 D.
    July 6, 1895.
   No opinion. Judgment affirmed, with costs and disbursements.


text:
    Matilda R. Watrous, App’lt, v. Ellen E. Low et al., Resp’ts.
    Sup. Ct. 2 D.
    June 14, 1895.
   No opinion. Motion to dismiss appeal denied, upon condition that the appellant duly serve her case on appeal, and argue said appeal at the term of this court for the second Monday of September, 1895; otherwise, said motion is granted.


text:
    Hamilton Weir, App’lt, v. Roger Sullivan, Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.

      E. R. Darling, for app’lt; M. I. Haviland, for resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Jennie E. Wells, Resp’t, v. Henry H. Wells, App’lt.
    Buff. Supr. Ct.
    January, 1895.
   No opinion. Order appealed .from affirmed, with $10 costs and disbursements. White, J., not sitting.


author: Ward, J.

text:
    Albert J. Wheeler, Resp’t, v. John Bell et al., App’lts.
    Sup. Ct. 5 D.
    June 21, 1895.

      Adelbert Moot, for app’lt; Adolph Redabow, for resp’t.
   Ward, J.

— The original plaintiff was Mark H. Irish. Irish "sued the defendants in Erie county for fraud in putting upon him some real estate in Buffalo, and in obtaining the same property from him by fraudulent means. The defendants were real estate agents, and assumed to act as gucli for Irish in the purchase of real estate, and went into an arrangement with the owner of some real property in Buffalo, whereby they got an option on the property from him for $10,000, and without disclosing that fact to their principal. Mr. Irish procured the sale to him of this property for $15,000, whereby the defendants and some persons associated with them in the transaction made $5,000. Irish took the property, made some improvements thereon, and left it in chal’ge <?f the defendants, as his agents, for" ai time, and went away, he living in Canada. hxWwards, wanting money, he proposed to sell to defendants the same property." They, in concert with another real1 estate agent, found a purchaser for the property at $24,000, and the defendants; .without informing Irish of this fact, bought the property of Irish, giving him- what he had paid for it, with interest and certain expenditures he had made Upbn the property, amounting in all to $17,500, a,nd they then sold to the other party the same property for the $24,000, and after paying an associate in the business $1,000. the defendants realized from the transaction $5,500, making the total amount they had received in operating on both sides of Mr. Irish $9,500. There was evidence to justify the jury in finding these facts, and they rendered a verdict against the defendants of only $2,000, which defendants seeks to set aside, on exceptions to the refusal to nonsuit, and a refusal to direct a verdict for" defendants, and to certain portions of the charge. None of the exceptions have merit, and the judg-ment and order should be affirmed.


text:
    Williams S. Williams, App’lt, v. Robert Lindblom Resp’t.
    Sup. Ct. 1 D.
    June 14, 1895.

      John M. Mitchell, for app'lt; Linns A. Gould, for resp’t.
   Per Curiam.

— We find upon an examination of this case thaf it lias "never "been settled; nor has it ever been ordered on file by any one who participated" in any portion of the proceedings. The case must be stricken from" the calendar.


text:
    Catharine Wimmer v. Patrick Clearly et al.

    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with costs. All concur.

Dykman, J., not sitting.


text:
    Charles S. Woodworth, Resp’t, v. Brooklyn City R. Co., App’lt.
    Buff. Supr. Ct.
    June 24, 1895.

      Morris & Whitehouse, for app’lt; Foley & Wray, for resp’t.
   Per Curiam.

— The sole point raised on this appeal is that the verdict is against the weight of evidence. We have carefully read the record, and are satisfied that the case was properly submitted to the jury. The testimony of Mr. Sanford, read as a whole, is not necessarily in conflict with the testimony of plaintiff. It is conceded by the plaintiff that the horse ran away after the collision, and Mr. Sanford testified that plaintiff told him that the horse did run away, but this is to be taken in connection with his testimony at folios 128 and 129. Mr. Dean substantially corroborated plaintiff as to the cause of the collision. Judgment and order denying a new trial affirmed, with costs.


text:
    Mary Ann Wright v. Brooklyn El. R. Co. et al.

    Sup. Ct. 2 D.
    July 26, 1895.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    William S. Wyse v. Marie S. Wyse et al.

    Supr. Ct.
    June, 1895.
    (G. D. Lamb, for pl’ff; E. B. Hinsdale, for deft’s Wyse and Woolverton Chris B. Alexander, for def’t Equitable Life Assurance Society.
   Per Curiam.

— The record herein discloses a carefully conducted trial. The court seems to have been governed by correct principles of law, and to have accorded to the appellant all the rights he could justly' demand. The findings of fact necessary to the conclusion reached are fully supported by competent evidence, and should not be disturbed. None of the exceptions is meritorious. The judgment should be affirmed, with costs to the respondents.


text:
    Stephen D. Arents, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Ejectment—Title—Possession.
    Where a plaintiff in ejectment adduces a chain of title to himself, from a source acknowledged to be genuine and valid, it is not necessary in such case, if he shows that the premises were held in the actual possession of some, to show possession in each, of the intermediate grantees. Such possession is presumed, and the burden is cast upon the defendant to establish an adverse possession.
    3. Same—Proof.
    Where the answer admits the possession of the premises by the defendant, it is only necessary for the plaintiff to establish his right to the possession.
    Appeal from a judgment for the plaintiff.

      William J. Kelly, for app’lt; Asa W. Parker, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment entered upon the report of a referee. The action was ejectment, and both parties claimed title to the premises. The defendant also claimed adverse possession for twenty years before the ■commencement of this action. The defendant further claimed that the premises were in the actual possession of the South Side Railroad Company, under a claim of title adverse to that of the plaintiff, when he took bis deed. The referee found in favor of the plaintiff on all of the issues. The premises in suit consist of a narrow strip of land, about sixty-six feet wide, which is now used .as a portion of the roadbed of the defendant’s railroad. Both parties recognize the title of John Jackson, and he conveyed the same to his son, John Jackson, Jr., by warranty deed dated May 12, 1872. The referee found that the premises so conveyed to John Jackson, Jr., were conveyed to the plaintiff through several mesne conveyances, which the referee finds and describes in detail. It was also found by the referee that Charity Treadwell, one of the grantees to whom the premises were conveyed in January, 1808, was in possessiou of the premises and cultivated them for more than forty years after the date of her deed. It was further found by the referee that Jeremiah Carman, to whom the premises were convoyed in 1849, was in possession of the premises and cultivated the same for three years from the date of his deed. The evidence is sufficient to support the findings of the referee and to justify his report in favor of the plaintiff. The premises were held in the actual possession o£ two of the intermediate grantees of the plaintiff, and that is all that can possibly be required under the circumstances. It is to be borne steadily in mind that the plaintiff adduced a chain of title to himself, from a source acknowledged to be genuine and valid, and in such a case it is not necessary to show possession in each of the intermediate grantees. Such possession is presumed, and the burden is cast upon the defendant to establish an adverse possession. Stevens v. Hauser, 39 N. Y. 302.

As the answer admits the possession of the premises by the defendant, it was only necessary for the plaintiff to establish his right to the possession. It should be noted that the premises in question constitute but a small part of the land conveyed by the deed to the intermediate grantees of the plaintiff. The defendant claims title from the South Side Railroad Company, and such right as the latter company had was obtained by a grant from Jacob S. J. Jones. There was no proof of title in him, and the referee refused to find that he ever had a title. There was no offer to prove by him that he was in possession, claiming title to the premises, in 1866, when he made the written agreement consenting to the construction of the South Side Railroad over the land; but that proof was offered to show that the land was held adversely by the South Side Railroad Company when the plaintiff took his deed for the premises. That offer was properly rejected. It appeared in several ways, which need not be recited here, that he never had any interest in the premises conveyed to the plaintiff. They were in Little Neck, and the land of the witness Jones was in Great Neck. The first deed of conveyance in the chain of title under which the defendant claims was from John Jackson to Obadiah Jackson, dated March 15, 1761, and conveyed land in Great Neck. The effort of the defendant to show title and adverse possession proved abortive.

We therefore find no error in the record, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Brown, P. J., not voting.


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    James E. Boyd et al., Resp’ts, v. Joseph H. Miller et al., Def’ts. Judgment Creditor, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Attachment—Affidavit.
    The affidavits, in this case, were held to contain evidence from which the special term judge might fairly draw the inferences necessary to sustain an attachment issued on the ground that the defendants have assigned or disposed of, their property, with intent to defraud their creditors.
    Appeal from an order, denying a motion to dissolve an attachment made by a judgment creditor of defendant.
    The affidavit filed in support of the attachment is as follows:

      Edgar 0. Schermerhorn, being duly sworn, deposes and says that he is one of the plaintiffs in this action; that summons has been issued herein ; that this action is to recover a sum of money only, as damages, for the cause hereinafter stated, by the above named plaintiffs against the above-named defendants. Deponent further says that a cause of action exists in favor of said plaintiffs against said defendants, for which said action is commenced, or is about to be, and that the amount of the plaintiffs’ claim in said action, and plaintiff is entitled to recover thereon the sum of $629.78, and interest from the commencement of this action, over and above all counterclaims known to the plaintiffs, and that the grounds of said claim and cause of action are as follows : The plaintiffs are coal merchants engaged in business in the cit\r of New York, under the firm name of A. S. Swords & Co., and the defendants are copartners engaged in business at Highland Falls, Orange county, New York, under the firm name of Joseph H. Miller & Co.; that between July 1, 1894, and January 15, 1895, the plaintiffs sold and delivered to the defendants a large quantity of coal, of the value and for the sum of $629.78, which amount the defendants agreed to pay therefor, and no part thereof has been paid, and the same is now due and owing and unpaid to the plaintiffs. This deponent further says that on or about the 24th day of January, 1895, one E. 0. Carpenter called on deponent’s firm, in the city of New York, and then and there stated to deponent’s said firm that he represented the defendants herein, and was acting for them, and that he wished to offer the plaintiffs, for and in behalf of said defendants, twenty-five cents on the dollar in full settlement of their claim against defendants ; that said Carpenter represented to deponent’s firm that the defendants had executed to one Frances A. JMiller, a sister of the defendants, a bill of sale of all their stock and interest in their business, including book accounts, for the sum of $1,000, that "the liabilities of the defendants amounted to $3,500, and that the said sum of $1,000 was all the money which the defendants had with which to pay their said liabilities; that on the 25th day of January, 1895, deponent went to Highland Falls, aforesaid, and saw the said Frances A. Miller ; that said Frances A. Miller, in response to interrogatories of deponent, the said Francis A. Miller told this deponent that, although she had loaned money to the defendants, she had taken no security for the same, and that no bill of sale had been executed to her by the defendants, as stated by said Carpenter; that immediately thereafter he called upon the defendant Joseph A. Miller, who is the active partner of the defendants, and asked him if he had authorized the said Carpenter to make the statements above referred to to deponent’s firm; that said Miller replied that he had, and he also said that he had sold the business of the defendants, including the stock, fixtures and book accounts, to his sister, the said Francis A. Miller; that deponent also visited Highland Falls this day, and again saw Joseph H. Miller ; that said Miller told deponent that the twenty-five cents offered by said Carpenter was the best he could do; that deponent also saw the said Frances A. Miller this day, and that she then told deponent that the money she had loaned her brother was $1,000, and that she had loaned it to the defendants about a year ago; that, on both occasions that the deponent visited Higliland Falls, the place of business of the defendants was not in the care or control of the said Frances A. Miller, but was in the care of the defendants, or of one of them, and that there was no appearance of any change of possession of the said business; that the plaintiffs are entitled to recover the sum above-stated, over and above all counterclaims known to the plaintiffs. The plaintiffs, therefore, hereby apply for a warrant of attachment against the property of the said defendants, according to the Code of Procedure, as a security for the satisfaction of such judgment as the plaintiffs may obtain against the defendants in this action, on the ground that the defendants have assigned, disposed of, or secreted, or are about to assign, dispose of, or secrete, their property, with the intent to defraud their creditors, including these plaintiffs.

      Headley & McClung, for app’lts; J. Howard Thornton, for resp’ts.
   Pratt, J.

We think it sufficiently appears that the moving parties have acquired a lien on defendant’s property subsequent to the attachment. The affidavit of Matthews states that the sheriff has taken possession of the property of defendants under the attachment, and is now in possession thereof, and that the execution of Matthews was thereafter duly issued and levied “ on the attached property.” That sufficiently describes the property, and shows it to be now held subject to process in the two proceedings. We are thus brought to the question whether the attachment was granted upon sufficient grounds. The attachment is stated to issue on the ground that defendants have assigned or disposed of, or are about to assign or dispose of, their property, with intent to defraud their creditors. We think the affidavits contain evidence from which the special term judge might fairly draw the inferences necessary to sustain the attachment. The creditor recites his conversations with defendants. Their statements, and the contradictions of their sister, to whom they claimed to have transferred their assets, are given at length, and we cannot say that the conclusion was unwarranted that defendants intended to transfer their property in fraud of their creditors. Just what had been done, and just what was intended to be done, it might not be easy to determine, as the statements made were conflicting. But we think enough appeared to sustain the attachment.

Order appealed from affirmed, with costs.


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    Henry R. De Milt, Resp’t, v. Sarah Hill et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Vendor and Purchaser—Misrepresentations—Relief.
    Representations of a grantor, which will entitle a grantee to relief in equity, must he of such a character that the grantee has no means of discovering their falsity. A court of equity will refuse its aid to those who, by their own negligence, have incurred the loss or suffered inconvenience.
    Appeal from a judgment in favor of plaintiff.

      Thomas Young, for app’lt; T. M. Griffing, for resp’t.
   Dykman, J.

This action was brought for the foreclosure of a mortgage. The premises first described in the complaint were conveyed by the plaintiff to the defendant Sarah Hill, and this mortgage of even date with the conveyance, was given to secure the full amount of the purchase money; but it included other premises, which áre secondly described in the complaint, which were not so conveyed by the plaintiff. The property so conveyed by the plaintiff was a mill site, and was purchased to be used as a water power in connection with an electric light company, which was to be thereafter organized. The defense to the action is that the representative of the plaintiff who negotiated the sale misrepresented the capacity of the water power by stating that it was 100 horse power, when in fact there was less than that amount, and that in consequence thereof the defendant Charles Hill was obliged to abandon the enterprise. The property was sold by the plaintiff to Francis C. Hill under a four-months option, which was dated and commenced to run on the 19th day of October, 1891. The deed from the plaintiff contains no covenants in respect to the water power, or -as to the character or condition of the mill property ; and there is no allegatiou of fraud in the answer, and there was no proof or claim of fraud upon the trial. The action was tried in the county court of Suffolk county, and the usual decree of foreclosure and sale was ordered and entered, and from that judgment the defendants have appealed.

Assuming that the representations respecting the water power were made according to the testimony of the defendant Francis C. Hill, it is to be remarked that the matter was not peculiarly within the knowledge of the person who made them; and it does not appear that any artifice was employed to conceal the condition of the property, or to prevent an inspection and examination of the mill pond to ascertain all the facts. On the contrary, the fact that an option of four months was given to the purchaser, during which period he had ample time and opportunity to examine the property, and ascertain its precise capacity and condition, is an evidence of the absence of an intention to smother inquiry or prevent the acquisition of knowledge respecting the property. Moreover, the purchaser was notified during the pendency of the option of doubts whether the pond would furnish 100 horse power. He was therefore put upon his inquiry, and closed the purchase thereafter. We are therefore forced to the conclusion that ordinary care would have disclosed the defect of which the defendants now complain. Such examination was not difficult, and the deficiency of which complaint is now made was open, and easily ascertained by the purchaser and by the seller. He had the same means of obtaining correct information as the plaintiff, and the law is now settled that in such case the court can afford no relief. Long v. Warren, 68 N. Y. 431; Starr v. Bennett, 5 Hill, 303; Taylor v. Fleet, 4 Barb. 95. This last case reversed and overruled the decision in the same case reported in 1 Barb. 471, upon which the defendants seem to place much reliance. The rules of law are well settled in oposition to the contention of the defendants. Representations of a grantor which will entitle a grantee to relief in equity must be of such a character that the purchaser has no means of discovering their falsity. In fact it has come to be a legal maxim that knowledge will be imputed to him who is able to inquire into a known thing. A court of equity will refuse its aid to those who, by their own negligence, have incurred the loss,'or suffered inconvenience. If a party does not avail himself of the knowledge within In's reach, he will never be entitled to the aid of equity. Bank v. Eltinge, 40 N. Y. 391; Tallman v. Green, 3 Sand. 437; Canaday v. Stiger, 55 N. Y. 455. The foregoing rules seem sometimes severe, in a given case, and their application may be so here; but, if legal rules were varied in their application to cases of hardship and severity, the law would soon be in a state of chaos. General rules must receive general application by the court. So far as we can see, after a full examination, the court can afford no relief, and the judgment must be affirmed, with costs.

All concur.


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    Jeremiah Mead, App’lt, v. George W. Chase, Resp’t.

      Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Bills and Notes—Diversion.
    Tiie evidence in this case was held insufficient to establish a cause of action against defendant for diverting a note, made by the plaintiff, from the purpose for which it was given.
    Appeal from a judgment dismissing the complaint.

      A. M. & G. Card, for app’lt; Hackett & Williams, for resp’t.
   Dykman, J.

The plaintiff in this action alleges in his complaint that he made his promissory note for $6,400, payable on demand to the order of the defendant, who was cashier of the Pawling Hational Bank; that the defendant promised and agreed to use the note for the purpose of pajnng and taking up three promissory notes of the defendant which were then lying in the bank, overdue; that, relying upon that promise, he delivered the note to the defendant, who fraudulently diverted the note from the purpose for which it was so delivered, and procured it to be discounted, and used the proceeds thereof for his own benefit; that by reason of the false and fraudulent representations so made by the defendant, and the diversion of the note for $6,400, the plaintiff has been damaged in that amount, for which he claims judgment. The defendant, in his answer, denied that the note was made or delivered to him to pay or take up the three notes mentioned, or any other notes, and also denied that he promised or agreed to use the said note to pay or take up such notes. On the contrary, the defendant alleged that the plaintiff made and delivered the $6,400 note to the bank, and that the plaintiff was at that time indebted to the bank in the amount for which that note was given, for checks paid by the bank for him, for money loaned to him, and for interest thereon, and that the said $6,400 note was delivered by the plaintiff to the bank for said indebtedness, and was duly credited to the plaintiff on the books of the bank, as it was agreed with the plaintiff that it should be at the time when that note was delivered. The defendant also denied that he ever made any false or fraudulent representations to the plaintiff, or that he fraudulently or otherwise used the proceeds of the said note, or diverted it from the uses and purposes for which it was given. The case came on for trial at the circuit, and at the close of the plaintiff’s testimony a motion was made in behalf of the defendant to dismiss the complaint, on the ground that the plaintiff had proved no cause of action against the defendant. The motion was granted, and the complaint was dismissed, and from the judgment of dismissal the plaintiff has appealed to this court.

Tire only issue which was presented by the pleadings was whether the plaintiff delivered the $6,400 note to the defendant to take up the notes tiren held by the bank, and whether the defendant fraudulently diverted it from that purpose, and had it discounted, and used the proceeds thereof for his own use and benefit. The record contains no evidence to show that the note was ever delivered by the plaintiff to the defendant, but, on the contrary, the plaintiff himself stated that he delivered the note to either Mr. Haight, the teller, or Mr. Tabor, the bookkeeper, of the bank; and as it was so delivered, either to the teller or the bookkeeper, it was, in the eye of the law, delivered to the bank. It was therefore to the bank, and not to the defendant, that the plaintiff delivered his note. It does not appear in any way that the defendant ever took it from the possession of the bank, or ever had it in his possession. There is sufficient in the case to show that the note was given by the plaintiff for his indebtedness to the bank upon his overdue paper, and interest thereon, which was then lying in the bank. The note shows on its face that certain stocks were given as collateral security for its payment, and, the day after the note was delivered to the bank, plaintiff gave his mortgage on property he owned in Connecticut to secure the payment of this note, and other notes, which he admits and states in the mortgage he owes to the bank. It is entirely plain that the plaintiff proved no cause of action against the defendant, and the complaint was properly dismissed. Judgment should be affirmed, with costs.

All concur.


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    James H. Perkins, App’lt, v. Commercial Advertiser Association, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Venue—W aivbr.
    The defendant’s right to move, before serving an answer, for a change of the place of trial is not waived by an extension of the time to answer, given by the plaintiff to him, on condition that the issue should remain as-of the date when the answer was first due.
    Appeal from an order, granting a change of the place of trial.

      Joseph Fitch, for app’lt; Butler, Stillman & Hubbard (.Fdward Kent, of counsel), for resp’t.
   Dykman, J.

Tliis is an appeal from an order changing the place from county of Queens to the city and. county of New York, that the plaintiff gave the defendant twenty daysr further time to plead, on condition that issue should remain of the original date of February 8th; and it is claimed that that extension was a consent to the trial of the action in the county named in the summons and complaint. The position of the appellant is untenable. Under the stipulation, the date of the issue when it was formed was to be the 8th day of February, but the time of joining issue was when the answer was served. As the motion was made before that time, it was,regular and within the statute. The order should be affirmed, with $10 costs and disbursements.

All concur.


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    Donlon and Miller Manufacturing Company, Pl’ff v. Joseph Cannella, Def’t. Frank Mann, as Receiver, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Mobtgage—Receiver—Rents.
    When a mortgagee commences an action to foreclose a mortgage and procures the appointment of a receiver of the rents of the premises upon the ground of the insufficiency of the security, such receiver becomes entitled to the rents accruing during the pendency of the action as against a ieceiver appointed in supplementary proceedings against the mortgagor, though they accrued after the appointment of the latter, but before the appointment of the former, receiver.
    Appeal from an order, made on the application of a receiver in supplementary proceedings, permitting a tenant of the mortgaged premises to pay rent to said receiver.

      Moffett & Kramer, for app’lt; Grout, DeFere & Mayer, for resp’t..
   Dykman, J.

This was an appeal from an order made at the special term, upon the application of Paul E. Jones, as receiver in supplementary proceedings, and the defendant Joseph Cannella, permitting a tenant of certain real estate belonging to the defendant pay $50 rent to that receiver, and restraining the tenant from paying the same to another person. The appeal is taken by Frank Mann, a receiver appointed in the foreclosure suit to collect the rents of the mortgaged premises. There is no controversy in relation to the facts, which are these : On the 80th day of Qctober, 1894, the plaintiff recovered judgment in the supreme court, Kings county, against the defendant, for the sum of $378.88, upon which execution was duly issued, and returned unsatisfied. On the 2d day of November, 1894, an affidavit and order for the examination of the defendant, the judgment debtor, was served, and such proceedings were had thereupon that on the 24th day of November, 1894, Paul B. Jones was appointed receiver in those proceedings, and he filed his bond, and qualified as such receiver. On the 21st of November, 1894, William Bierman commenced an action against the defendant, Cannella, to foreclose a mortgage upon property in the city of Brooklyn. On the 29th of December, 1894, Frank Mann, the appellant, was appointed receiver of the rents and profits of that property in that action of Eierman’s. to foreclose the mortgage, in the county court of Kings county, and at that time the county court was not advised that a receiver had been previously appointed in the supplementary proceedings. Frank Mann, qualified as such receiver January 7, 1895. Edward Eckert was the tenant of the defendant’s property, and on the 18th day of January, 1895, being indebted for the rents of the month of December, 1894, and January, 1895, due January 1, 1893, at $25 per month, the receiver in supplementary proceedings obtained an order to show cause why the tenant should not. be permitted and directed to pay the rents to that receiver, and be enjoined from paying the same over to the receiver in the foreclosure action. These rents had accrued and become due from the tenant to the defendant prior to the time when the receiver in the foreclosure suit qualified. That application was granted, and from the order granting the same the appeal is taken.

When a mortgagee commences an action to foreclose a mortgage, and procures the appointment of a receiver of the rents of the premises upon the ground of the insufficiency of the security, such receiver becomes entitled to the rents accruing during the pendency of the action. A mortgagee has an equitable right to have the mortgaged premises devoted to the payment of his mortgage debt, and while he cannot claim the rents and profits by virtue of his mortgage alone, yet, when the court recognizes his equitable right to the rents by the appointment of the receiver to collect them, then the right attaches to have them applied in ex-tinguishment of the mortgage, so far as such application becomes, necessary. A specific lien upon such rents and profits is thus obtained by the mortgagee, and he becomes entitled thereto. Astor v. Turner, 11 Paige, 436. In this case it must be assumed that the mortgaged premises are insufficient security for the payment of the mortgage debt. That is implied by the order appointing the receiver. The receiver in the mortgage case was appointed to receive a particular fund, upon which the mortgagee had acquired a specific lien, and the receiver in supplementary proceedings takes the property of the judgment debtor subject to the equitable claim of the mortgagee upon the rents and profits of the premises, to be applied in payment of the mortgage debt. These rules show the order to be erroneous, and it should be reversed, with $10 costs and disbursements, and the motion denied,, with $10 costs.

' All concur.


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    Thomas Lewis, Resp’t, v. Emily N. Cook et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Will—Probate—Validity.
    An action to determine the validity of the probate of a will may be brought within two years after the last decree admitting the will to probate, where the first decree was reversed within two years after it was entered.
    Appeal from an interlocutory judgment, sustaining a demurrer to the first defense set forth in the amended answer.

      Thos. Young, for app’lt; Wilmot M. Smith, for resp’t.
   Dykman, J.

This is an appeal from an interlocutory jundment sustaining the demurrer interposed by the plaintiff to the fist defense set forth in the amended answer of the defendant. The action was brought to detemine the validity of the probate of a will of Mary Snelling, deceased, under section 2653a of the Code of Civil Procedure. For a first defense the defendants set up in their answer that the action was not commenced within the time prescribed by the section of the Code to which reference has been made; second, that the section has no application to personal property ; third, that the section is not' applicable to this action, because the testator died before its passage. The plaintiff demurred to that defense on the ground that it was insufficient in law upon its face. The issue of law was tried at special term, and judgment was rendered for the plaintiff, sustaining the demurrer, and from that judgment the defendants appealed.

The case is under the control of the first part of section 2653a, - which reads as follows :

“Any person interested in a will or codicil admitted to probate in this state as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the supreme court for the county in which said proof was had.”

The section requires that the action should be commenced within two years after the will has been admitted to probate. In this case the will was first admitted to probate July 27> 1891; but before two years from that date, and on January 17, 1893, the probate was reversed by the court of appeals. Before two years had expired after the first probate of the will, the "plaintiff was prevented from bringing this action by the judgment of the courts. By that judgment the original status was restored, and the parties were placed in the same condition as they were before the first probate , of the will. They had the same rights before the surrogate, and the same right to attack the will, under section 2653a of the Code, within two years from his second decision admitting the will to probate, which was October 9, 1893. This action was commenced June 1, 1894,—within less than one year from the time the will was finally admitted to probate. It appears, therefore, that under a proper construction of the statute this action was commenced within the time prescribed by the section quoted. It is also contended by the defendants that the section in question has no application to personal property, but the contention is erroneous, for the language is general, and applies to all wills and codicils, whether of real or personal property. It is also contended that the section does not apply to this case because the testator died before the section was enacted, which was in 1893 ; but we agree with the conclusion of the trial judge that the section applies to wills which were proved after the passage of the act. The statute constituted a change in the mode of procedure which is not violative of vested rights.

Judgment should be affirmed, with costs.

All concur.


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    Charles Coppock, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    ■Cabbiebs—Passengers—Limiting liability.
    A person in charge of his employer’s horses, who takes passage in the car in which the horses are transported, without making any personal contract with the company, though he knows that his employer made arrangements with tile company for his transportation, is not chargeable with knowledge that such contract exempted the company from liability for any injuries that he might receive while traveling in such car.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a morion for new trial, made on the minutes.

      William J. Kelly, for app’lt; Dailey, Bell & Orane, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon

a verdict in favor of the plaintiff and against the defendant after trial at the circuit, and also from an order denying a motion for new trial upon the minutes of the court. The case discloses the following facts: On the 6th day of December, 1893, the plaintiff was in" the employ of Dr. Wyckoff as a groom, and on that day was going from the summer residence of his employer, at Southampton, to Long Island City upon the railroad of the defendant. The plaintiff, in company with the coachman, Thomas Adcock, was to transport the horses of his employer with them on the train irom Southampton in what was known as the “Wagner Palace Horse Car." About nine o’clock on the morning of December 6, 1893, Thomas Adcock, the coachman, went to the ticket office at Southampton, to pay for the car, and he did pay for the car $48, which included Dr. Wychoff’s horses and carriage, and two men in charge. He asked the agent if that charge included everything and was informed that it did. He hired the whole car, which included everything, and the agent told him it included the fare of two men; and he signed, as he says, at that time, the printed paper which he always signed for shipping; and as appears bn the cross-examination of the plaintiff, he supposed, and was informed by Adcock, that he (Adcock) had bought his ticket and paid his fare so that when the plaintiff boarded the defendant’s train at twelve o’clock noon, with the horses, he supposed his fare had been paid by Adcock, whoso informed him. The’time at which the train left Southampton for Long Island City was two o’clock in the afternoon, but for the convenience of the defendant the plaintiff, the coachman, and the horses were taken on the train at twelve o’clock, which stopped at Southampton, coming from Long Island City, and proceeding easterly to Sag Harbor. This, as was explained, was for the reason that it was easier to load horses and carriage on trains going east than trains going west, and also for the sake of saving time on the western trip. The Wagner car into which the horses were placed also had the usual car seats for passengers. That car was taken to Sag Harbor on the twelve o’clock train going east, and there switched upon a siding, to be made part of the train going west, due at Southampton at two o’clock. While this palace horse car was on this siding at Sag Harbor, the train to which it was to be attached came back from the main track onto the switch, and collided with great force with the car in which the horses were at that time, and inflicted the injuries upon the plaintiff for which this action is brought.

There is no denial of the collision, or of the negligence from which it resulted. The defense to the action is that the plaintiff made a special contract with the defendant, whereby it was relieved from all liability in carrying the plaintiff, even for the negligence of its servants. Upon that subject the trial judge charged the jury that:

“Although the blank contract was made between Dr. Wyckoff, and the railroad company,—that is, between Dr. Wyckoff, through his agent, Adcock, of whoever did it, and the railroad company, —nevertheless, if this plaintiff did not know that in the contract there was any clause exempting the railroad company from liability to him for any negligence of the railroad companj'-, and if the jury found that the plaintiff did not know it, and also found that he did not have the opportunity of knowing it, that it was not in any way called to his attention, that he was not put on inquiry sufficient to make the jury say that he should have known it, if he did not know it, the exemption would not hold in favor of the railroad company, and the plaintiff would be able to recover. Traveling in this horse car, without having made any personal contract himself it may well be that he knew or that he supposed — which I charge you would be the same thing-—that Dr. Wyckoff had made some contract or provision for him. But I charge you that although riding as he was, and knowing that Dr. Wyckoff must have done it, or presumed that he must have done it, which was the same thing, nevertheless, that in itself did not necessarily bring home to him the knowledge that in that contract which Dr. Wyckoff or somebody else had made for him, or to cover his case,—that did not necessarily bring home to him knowledge that in the contract the negligence of the railroad company had been exempted, so that he could not recover for its negligence ; because, gentlemen, the rule of law is that the company is liable for its negligence. And while I charge you that you can go to a railroad company, and enter into a contract exempting it from any negligence, if you see fit, nevertheless, the position that the plaintiff was in toward this company, riding on this’road in that way, the fact that he knew or supposed that the contract had been made covering his case did not necessarily carry home to him the knowledge that the railroad company had been exempted from the liability which the law casts upon it.”

This charge was a correct exposition of the law applicable to the case, and gave the facts fairly to the jury; and therefore, in view of the fact that the verdict was rendered by the jury in favor of the plaintiff, it must be assumed that the facts were found in accordance with the charge, and therefore that the plaintiff in this action was destitute of knowledge that any contract had been made exempting the railroad company from negligence toward him. The jury, in obedience to the rules thus laid down, were the sole judges of the facts, and rendered a verdict in favor of the plaintiff. No principle of law has been violated, and the verdict is not excessive.

The judgment and order denying a new trial should be affirmed, with costs. All concur.


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    William H. Kent, as Administrator, etc., Resp’t, v. William Rockwell et al., App’lts. Jane Learey, Resp’t, v. Same, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Attorney and' client—Summary proceeding.
    An attorney cannot, in summary proceeding to compel payment over of his client’s money, deny that he received the money, where he assumed control of it and directed its payment by the actual custodian to a third person for his own benefit.
    Appeal from orders in summary proceedings, compelling attorneys to pay over certain moneys of the petitioner’s alleged to be in their hands.

      Joseph P. Joachimsen, for app’lts ; Charles N. Judson, for resp’ts.
   Dykman, J.

These are two proceedings against William Rockwell and Charles J. Pierson, who are attorneys and counselors at law, to compel the payment over of money which was received in a fiduciary capacity for their clients. They are considered in connection with each other, because to a certain extent the control-in g facts are the same in each.

On the 16th day of January, 1893, Mary Kent made an application to the court at special term to compel the appellants to pay over certain moneys which they had received for her. That application was based upon a petition which stated substantially that she, with two of her sisters, Jane Learey and Esther Foster, defendants in an action for the partition of real property, and employed the appellants as their' attorneys in that suit; that- such proceedings were had in that action that the premises were sold under the direction of the court, and the petitioner was entitled to realize from the proceeds of' such sale, as her distributive share, the sum of $686.48, and that her two sisters were each entitled to receive a similar sum; that the appellants received from the referee the sums so belonging to each of the three defendants, and received for the petitioner the sum of $686.48, besides the sum allowed to the appellants for costs in that action; that the appellants had paid to the petitioner the sum of $300, but have neglected and refused to pay over the balance,—and the petitioner prayed for an order directing the appellants to pay over to the petitioner the balance remaining in their hands, to wit, $386.48, or show cause why an attachment should not issue against them. Upon that application, William Rockwell, one of the appellants, presented an affidavit in which he stated substantially that they were practicing attorneys and counselors of the supreme court, and were retained by the petitioner as her attorneys in the partition suit; that on or about the 15th day of December, 1892, his firm received from the referee the sum of $686.48, being the share allowed to the petitioner, Mary Kent, and on the same day paid to her the sum of $300, stating at that time that it was not to be considered as a settlement, but that his firm would be obliged to wait for the bill of other attorneys, necessarily employed by them in the conduct of the defense in that action, before they could render a complete and final settlement; that the bill of costs of his firm amounted to $215, $150 of which was an allowance made by the court. Upon the petition and affidavit so presented it was decided at special term that the appellants should pay over the balance of the money which they had so received for the petitioner.

No formal order was entered upon that decision, and about the 7th day of February, 1894, during the pendency of the proceed- „ ings, the petitioner, Mary Kent, died, and William Kent was appointed the administrator of her estate by the surrogate of Kings county. He qualified as such administrator, and entered upon the discharge of his duties. After he was so appointed, he presented a petition to the supreme court at special term, in which he recited the previous proceedings on the part of his intestate for the procurement of the money, and that she had died, and he had been appointed the administrator of her estate, and that he was desirous of continuing the proceedings, and asked for an order continuing the same in his name. On the 26th day of January, an order was made directing the proceedings tobe continued by William H. Kent, as administrator of the said petitioner, Mary Kent, deceased, and that he be substituted as the petitioner in her place,-to be allowed to amend their petition forthwith, and that the amended petition be filed as the petition of the administrator in this proceeding. Thereupon the administrator presented a second petition to the court at special term, in which he substantially recited the facts which had been stated in the petition of his intestate, and prayed that the appellants be directed to pay over to him, as such administrator, the balance remaining in their hands which belong to his intestate. In answer to that petition, William Rockwell made an affidavit, in which he stated substantially that his firm never actually received the full amount of the shares of Mary Kent, Jane Learey, and Esther Foster, bo wit, $2.059.44, and only received the sum of $1,282, of which they have paid to Mary Kent, Jane Learey, and Esther Foster each $300, making an aggregate of $900, and since that time they have paid to Mary Kent and Jane Learey the sum of $190 eacli additional; that, before any moneys were received by them, they gave an order to their landlord upon the referee for the sum of”$772.38 for rent, which was due from them to their landlord, to be deducted from the moneys in his hands as such referee; that such order was presented by the person to whom it was given to the referee, and he paid the same to him, and deducted the amount thereof from the sum which should have been paid to the three defendants, Kent, Learey, and Foster, and paid only the balance thereof to the appellants—and he, therefore, asked that the application be dismissed, or that it be decreed, if any sum be paid by his firm to the petitioner, that it will be only the sum of $37.33, that being the only sum they had actually received in excess of what they paid. William Rockwell made a second affidavit in the same proceeding on the 3d day of November, 1894, in which he stated that the first affidavit made by him in answer to the petition presented by Mary Kent was made hurriedly, and under a misapprehension of the legal effect of the facts which were set forth in his last affidavit. Thereupon an order was made at the special term that the appellants pay to William H Kent, as administrator, or to Charles Judson, his attorney, the sum of $296.48, with interest from December 15, 1892; and from that order Rockwell and Pierson the attorney, have appealed to this court.

In the case of Mrs. Learey, the facts and proceeding are substantially the same down to the first affidavit made by William Rockwell in answer to tbe petition presented by Mary Kent in the first instance. But in the Learey case the decision was in favor of the petitioner, and an order was made on the 17th of October, 1894, directing the appellants to pay over the balance of $296.48, which remained unpaid upon that portion, to the petitioner, Mrs. Learey. Thereupon William Rockwell procured an order requiring the petitioner, Mrs. Learey, or her attorney, to show cause at a special term of the supreme court in Brooklyn on the 3d day of November, 1894, why the order made on the 17th day of October, 1894, should not be vacated and set aside, and why there should not be a reargument of the motion, and why the petition of Mrs. Learey should not be dismissed. That application was based upon an affidavit of William Rockwell which stated substantially the same facts as the affidavit made by him in answer to the petition of William H. Kent, as administrator. This last affidavit contained also a statement that, through inadvertence or misapprehension, the view of the case stated there was not thoroughly, if at all, presented on the hearing of the original motion. Upon the hearing of that application the motion for reargument was denied; and from the order denying that motion to vacate and set aside the original order, and to grant a reargument of that motion, the attorneys, Rockwell and Pierson, have appealed.

There is no appeal in this Learey case from the original order, so that the only question before us in the Learey case has reference to the denial o! the motion for a reargument of the original motion; so that the questions now for determination relate to the appeal from the order made in favor of the administrator of the original petitioner for the payment of the money to him, and the denial of the motion for reargument in the Learey case. We do not see how the failure by the lawyers to receive all the money belonging to their clients can exempt them from liability, in view of the cause of such failure. In reality and in legal contemplation, the appellants did receive the money. They assumed control over it, and instead of taking the money themselves, as they were at liberty to do, and paying it to their landlord, they directed the actual custodian of the fund to pay it to him. What they so did by the referee, in the eye of the law, they did themselves, and it was equivalent to receiving the money themselves. The attorneys perpetrated a wrong upon their clients when they used the money in the hunds of the referee to pay their own debt, and it would constitute a violation of legal principles to permit them to profit by their own wrong. Moreover, if that act furnished immunity to the attorneys, the referee would remain responsible to the parties, which would be very unjust as between him and the lawyers.

Both orders should be affirmed, with $10 costs and disbursements in each case. All concur.


author: Dykman, J. Pratt, J.

text:
    Oliver W. Ingersoll, App’lt, v. Nassau Electric Railway Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Railroads—-Street—Consent op property owners.
    A railroad company can run its cars over the road of another company, already constructed and in operation in the street, without first obtaining the constitutional consent of the property owners.
    Appeal from a judgment in favor of defendant.

      Wood & Hill, for app’lt; John C. Church, for resp’t.
   Dykman, J.

The plaintiff in this action is the owner of real property on the south side of Bergen street, between Rogers avenue and Nostrand avenue. Tbe suit is instituted for the procurement of an injunction to restrain the defendant from constructing, operating, or maintaining any surface railroad or tracks through Bergen street, between the avenues above mentioned. Bergen street, between those two avenues, is included in the route of the defendant’s railroad; but there is in that street already a double-track railroad, owned and operated by the Atlantic Avenue Railroad Company, and the defendant has obtained the permission of that company to run the cars of the defendant over the tracks of the Atlantic Company on that block. At Rogers avenue and Nostrand ave'nue, curved tracks are to be laid to connect the defendant’s track with the track of the Atlantic Company, but the complaint contains no claim of injury from the construction of such connecting track. The action is based upon the constitution and the statute, and the constitutional provision invoked is this:

“ No law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.” Article 3, § 18.

Section 91 of the act of 1893 (chapter 434) contains substantially the same interdiction.

The complaint alleges that the defendant, in pursuance of the consent of the common council of the city of Brooklyn, is constructing, and preparing to maintain and operate, its tracks or road on Bergen street, between Rogers and Nostrand avenues, and that such construction and operation would irretrievably injure the value of the plaintiff’s property, and infringe his rights. The facts, however, fail to sustain those charges of the complaint, because, as we have seen, the defendant is not constructing, and does not propose or intend to construct or operate, its tracks of road on Bergen street at all. The tracks of the Atlantic avenue Company are laid there, and we must assume that the consent of the property owners and of the local municipal authorities has been obtained for the construction and operation of that road through Bergen street. All the constitutional and statutory requirements are therefore satisfied. The Atlantic Company may operate its road in any legal manner consonant with the purposes for which it was organized. It may hire out its line, or it can permit other railroad companies to run their cars over its tracks, according to statutory provision upon that subject. The legal use of the franchises of the Atlantic Company is untrammeled. The defendant does not intend to appropriate Bergen street to any new use. The interests of the locality have been consulted in relation to the construction and operation of the railroad already there, and the street is to be no further obstructed. The defendant does not intend to lay down or operate its railroad tracks in that street. It is quite conceivable that the right to use the tracks of the Atlantic Company, and operate its road, may be transferred to another company by a voluntary or forced sale; but it will not be contended that any new consents from property owners or local authorities would be necessary, in such a case, to the continued operation of the railroad by a new transferee of the property and franchises of the old company. The right to exercise the franchises of the Atlantic Company became vested upon the procurement of the necessary consents. In re Rochester Electric Ry. Co., 123 N. Y. 351; 33 St. Rep. 695. The constitutional inhibition under consideration is leveled against the construction and operation of a new railroad without the proper consents, but there is neither a constitutional nor a statutory prohibition against the use of one Tailroad, by the cars of another without such assents. Moreover, the question seems to be set at rest by the decisión of the court of appeals in the case of People v. Brooklyn F. & C. R. Co., 89 N. Y. 75. It was there decided that one railroad company could run its cars over the road of another company without obtaining the constitutional consents. In any view, however, the defendant intends to do nothing of which the plaintiff can complain in this suit. To sustain his action, he must show that the defendant is doing, or intends to do, something in Bergen street that will be of especial and peculiar injury to him or his property. This is not a taxpayer’s suit to prevent waste or injury or a public wrong. It is a private action to restrain the defendant from doing an act in a public street in a great city which is under the control of the municipal authorities for the benefit of the whole people, and in which the plaintiff has no peculiar interest. He does not stand for the community. He must show an infringement of some private right, or, in other words, he must show that the defendant is doing, or is about to do, some act in Bergen street from which he will sustain some injury to him or his property. Injuries sustained by the plaintiff in common with the whole people cannot be redressed in a private action by him. It already appears that the defendant has done nothing in Bergen street, and only intends to run its cars in that street over the railroad tracks now laid down and in use. No change is contemplated, no additional space is to be occupied and it is impossible to see how the plaintiff can sustain any peculiar injury from the use of the tracks which the defendant proposes to make.

The judgment should be affirmed, with costs.

Brown, P. J., concurs.

Pratt, J.

(dissenting.)—I have been unable to satisfy my mind that the act of 1890 and the amendments of 1893 and 1894 do not prohibit any street-railway company organized under the several laws of 1890 operating any railway in any street except on condition that it shall first obtain the requisite consent of property owners on the street. The defendant was organized under the general railroad law of 1890. Its route runs through Bergen street, in front of plaintiff's premises. It has obtained the consent of the local authorities to construct and operate its road, but has obtained no consent of any property owners on Bergen street. The consent of the local authorities was conditioned upon its compliance with all the provisions of the railroad law, and, acts amendatory thereof. The railroad law requires consent of one-half in value of the property owners on the several streets on its route. The contention of the defendant is that such consents were unnecessary, under that law, because it does not propose to construct any railway on Bergen street, but merely to use the tracks of the Atlantic Avenue Railway Company already existing in that street, under a contract with the latter. As I construe the statute, the prohibition extends disjunctively to the building, extension, or operation of street railways. It forbids the operation of a street railway quite as much as its construction or extension. Nor does it matter that the defendant does not propose to construct in Bergen street, or that the Altan tic Avenue Railway was constructed before these special statutory provisions, or even the constitutional prohibition. The acts under which the Atlantic Avenue Company was organized rendered it subject to future legislation. The constitutional prohibition was aimed at the future. We find such future legislation in the acts of 1890,1893, and 1894, and in the railroad law, which, in effect, prohibits any street-railway company organized since those acts took effect from operating a railway without such consent, unless, perhaps, as the successor of the owner of the pre-existing franchise of the pre-existing road. True, the railroad law authorizes a contract by one company for the use of a part of its tracks by another, but that is subject to the other provisions of the law. Such a contract may be lawful, but, the moment the hirer of the track attempts to use it, then quoad hoc, it begins the operation of that railroad. _ For all practical purposes, the portion thus used becomes the road of the hirer, and the act of running cars over it is the “operation of'the road.” Let us test this question by an easy illustration of the design of these prohibitions both in the constitution and in the statute. Take the- case of a railway constructed and operated by consent of local authorities and property owners. What did the property owner consent to? Was it that his street should be thrown open to any use of the tracks to which the consentee might agree ? I think not. He consented to the construction and operation of the railroad proposed by the company which applied for and obtained the consent,—a railroad having definite termini a recorded route and plans ; something which the judgment of the property owner could comprehend, and upon which he might act intelligently ; something from which he could form some estimate of the probable advantage of the scheme to his property, and the probable burden or servitude which it would impose. It is idle to say that any one consenting to the construction and operation of, say, the Bergen Street Railroad, with its specific route, plan, termini, etc,, could have contemplated that the passenger traffic of a new cross-town line, from some grand central depot connection to the seashore, should be poured over that track in front of the consentor’s door. He might well have consented to the one, thinking that it would be an advantage to his property, when the other, either alone or in conjunction with the former, would be a positive injury. Instead of the ordinary street-railway traffic, involving one car in five or ten minutes, there might be as many cars as congregate about the City Hall Square; for, if this sort of thing may be done for one railway company, it may be done for a dozen. Thus a totally uncontemplated burden or servitude would be imposed on the consentor’s property. His consent would be wholly misconstrued. This, to my mind, illustrates the design of these constitutional and statutory provisions,—namely, to give the property owner some sure guaranty against the encroachment of street-railway corporations upon private property. Such a ruling in the case which I present would be simply to whittle away into nothing that which was intended to be a safe and reliable guaranty,— namely, the voice of a majority in value of the property in any street. As I look upon this case, the defendant and this Atlantic Avenue Company, at the commencement of his suit, stood in precisely the legal relation to property owners which I put by the foiegoing illustration. The defendant proposes to operate a part of its line of railroad, and which, quoad fyoc, is to become its railroad and railrord track, in direct violation of the spirit, if not of the very letter, of these statutory and constitutional prohibitions, and, without complying even with the conditions on which the consent of the local authorities was given. These views lead to a reversal of the present judgment, and to a new trial, with costs to abide the event of the action.


text:
    The People ex rel. Richard M. Winfield, App’lt, v. Charles F. Bruning et al., as Common Council, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Statutes—Previous acts.
    Chap. 182 of 1892, though referring to previous acts without incorporating them therein, was held not to violate section 17, art. 3 of the state constitution, which provides that no act shall become part of another law except by inserting it therein.

      Certiorari to review an assessment, made by the common council of the village of Mount Vernon.

      Milo J. White, for relator ; David Swits, foP resp’ts.
   Dykman, J.

This is a certiorari to review an assessment laid against the property of the relator for the construction of a sewer in the city of Mount Vernon, in Westchester county. That city was incorporated in March, 1892, by an act of the legislature, and the sewer in question was constructed under the provisions of that act, and section 181 of the act provides for a plan and system of sewers for the portion of the city not already sewered, and the construction of sewers in accordance with such plan and system. The city was the successor of the village of Mount Vernon, and some sewers had been constructed in the village before it was merged into a city. After providing for the preparation of a plan as already stated, section 181 contains this language:

“All general laws and special acts in relation to sewers applicable at the time of the passage of this act, to the village of Mount Vernon, shall apply with equal force to the city of Mount Vernon, to all sewer hereafter to be constructed therein, and any sewerage loan bonds which may be issued by said city under chapter 608 of the Laws of 1886 and the several amendments thereto shall be designated 1 Sewerage Loan Bonds of the City of Mount Vernon.’ ”

This last part of the section is- now challenged as being violative of section 17 of article 3 of the constitution of the state of New York, which is this:

“No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said ■act, or which shall enact that any existing law, or any part thereof, shall be deemed applicable, except by inserting it in said act.”

That provision of the constitution is designed to prevent hasty and inconsiderate legislation of which legislators might be ignorant. It was not designed to interdict the subordination of spepial acts to some provisions of general statutes regulating the procedure under the act. The rule upon the subject is this :

“ Where a statute, by its own language, grants some power, confers some right, imposes some duty, or creates some obligation, the fact that it refers to some other existing statute, general or local, in order to point out'the procedure, or some administrative detail necessary for the accomplishment of the purposes of the act, does not bring it in conflict with the provision of the constitution under consideration. People ex rel. Everson v. Lorillard, 135 N. Y. 285; 47 St. Rep. 823.

The statute under review in that case was much nearer the danger line than this, and it was held there that an act providing for the acquisition and improvement of certain land in connection with Washington bridge was not rendered obnoxious to the constitutional provision now invoiced because of the fact that it referred to another local act as to method of procedute to be had to acquire title to the lands required. The portion of the statute under consideration does not re-enact the statutes to which it refers. It simply provides that all the statutes relating to sewers which were applicable to the village of Mount Vernon shall apply to all the sewers thereafter to be constructed in the city of Mount Vernon. It is to be observed further that section 181 of the city charter contained ample provisions for the construction of sewers indenendent of the clause which referred to other statutes. As all the proceedings for the levying of the assessment were regular and legal, they must be confirmed, with costs.

All concur.


text:
    Kate Foley, App’lt, v. Manhattan Elevated Railway Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Negligence—Notice.
    An elevated railway company is not liable for the defective condition of its stairs, where such defect has not existed long enough to charge it with notice.
    Appeal from a judgment dismissing the complaint.

      Maguer & Hughes, for app’lt; Davies, Short & Townsend, for resp’t.
   Dykman, J.

This is an action'for damages for injuries sustained By the plaintiff upon a stairway leading to the elevated railroad station of the defendant. At the close of the testimony the complaint of the plaintiff was dismissed, and she has appealed from the judgment of dismissal.

The testimony on the part of the plaintiff is very unsatisfactory in respect to the precise cause of her injury. She says that she entered the car at Twenty-third street and Third avenue, and left at Sixty-seventh street. She started downstairs, and, after descending about'five steps, her feet were held fast in the rubber, and she was thrown downstairs. She says her feet were caught in the rubber which was on the stairs. She says both her feet were caught in the rubber, and she fell down. She could not say how she came to fall all the way down, but that her feet were held fast. She says her niece had preceded her, and returned, took her by the hand, and turned her over, and then she fell to the bottom; then her feet got loose, and she rolled down to the platform. On her cross-examination she said she put both her feet on the same step at the same time. The niece of the plaintiff, who was with her at the time, was called, and she testified, after she missed her aunt, she went back and took her by the shoulder, and turned her, and she loosened her from the rubber, and then she slipped down the remainder of the stairs to the bottom. The plaintiff fell to the bottom of the stairs when she loosened her from the rubber. Then site said that after she loosened her from the rubber she fell about two steps, and then rested on the platform. After she had fallen two steps, she went to the bottom, and then the ticket man came down and took her upstairs in the waiting room, and she stayed there. Then the station agent of the defendant at Sixty-seventh street was called as a witness, and lie said there were two flights down the stairway—seventeen steps at the top flight and twelve on the bottom—and that the top flight was the one upon'which the plaintiff fell. He says that before the plaintiff fell he wrent upstairs and down the stall's and examined them, and they were in a good condition at that time, and there were no holes in the rubber. The following question was asked him: “Q. Was there anything the matter,— holes worn, frayed, cut, or torn ? A. Nothing whatever, sir.” Then he went on to say that he examined every step of the stairs after the accident, and found everything in good order, about two or three minutes after the accident, as soon as he could do it. Then .the porter of the defendant at Sixty-ninth street was called, and he said that lie knew the condition of the stairs on that day. and found them in good order, and the rubbers nailed on, and there was nothing loose, and no nails sticking out. He put his hand on the stairs where the lady was, and found nothing loose, neither nails nor screws.

It thus appears that the testimony respecting the accident was so unsatisfactory and uncertain that it was insufficient to charge the defendant with negligence. The plaintiff says that both her feet were on the same step at the same time, and that they were both caught in the rubber. She says further that the heels of both her shoes were torn off. This state of affairs would seem.to be impossible for the testimony of the employes of the defendant; but, even if it should be assumed that they were at the time out of order, so that the plaintiff’s shoes would be caught under the rubber, that state of affairs could not have existed for a sufficient length of time to justify a charge of negligence against the defendant for their condition. If they were out of order, it was for a very few moments, during which time the defendants had no notice of their condition, and no time or opportunity for their reparation. The law would not justify an inference of negligence against the defendant for a defect in these stairs, or the rubbers upon them, which had existed but for a few moments, and of which the defendant had no notice.

Our conclusion is that the complaint was properly dismissed, and the judgment must be affirmed, with costs.

All concur.


text:
    William F. Stokes, Resp’t, v. Atlantic Avenue Railroad Company of Brooklyn, App’lt

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Tbial—Dismissal on the mebits.
    It is erroneous for the court to dismiss, upon the case at the close of the testimony upon the part of the plaintiff, or for the clerk to insert in the judgment that the dismissal was upon the merits, where no question was submitted to the jury for their finding, nor any direction of the verdict made by the court.
    Appeal from an order, denying a motion to amend the judgment by inserting, after the word “ dismissed,” the words “ upon the merits of the action.”

      Tracy, Boardman & Platt, for app’lt; Cf. Washbourne Smith, for resp’t.
   Dykman, J.

This is an appeal from an order made at special term denying a by to in this action by inserting after the word “ dismissed ” the words “ upon the merits of the action.” The suit was brought for the recovery of damages for personal injuries to the plaintiff. Upon the trial at circuit before a jury, upon the close of the testimony upon the part of the plaintiff, the complaint was dismissed, and judgment of dismissal was entered. No question was submitted to the jury for their findings, nor was the verdict directed by the court.

In such cases it is not only irregular, but would be erroneous, for the court to dismiss the case upon the merits, or for a clerk to insert in the judgment that the dismissal was upon the merits. Martin v. Cook, 37 St. Rep. 733. All authorities are harmonious upon this subject. The case cited was an action brought by a servant against his master to recover damages for personal injuries. After the plaintiff had rested, on motion of the defendant’s counsel the court dismissed the complaint upon the merits. On the appeal from that order the words “ upon the merits ” were stricken out, and .the court held that a dismissal in such a case was not upon the merits. The dismissal of the complaint in this case was equivalent to a nonsuit, and should be treated in the same way. If the counsel for the defendant upon the trial had procured a dismissal, or procured the dismissal upon the merits, and the judgment had been so entered, it would have been erroneous, as we have already seen, and would have been corected upon motion.

The order should be affirmed, with $10 costs and disbursements.