text:
    In the Matter of William Spaulding, Resp’t, v. John J. Arnold, County Treasurer, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Town bonds—Duty oe county tbeasdbeb—Sinking eund.
    Where the taxes paid by a railroad corporation for a series of years have been turned into a “general fund,” and the specified portion not applied to the payment of town bonds, issued in aid of such road, as required by chap. 907, Laws 1869, as amended by chap. 288, Laws 1871, and there has at all times been an excess of such general fund sufficient to have complied with the law, it will be assumed that the general fund contains the moneys to redeem such bonds, and the county treasurer may be required to set apart and invest enough of such excess to meet the requirements of the statute.
    3. Same.
    It is not necessary that the particular moneys should be identified, nor is it important that the present treasurer did not receive the moneys directly from the railroad company, but received part of it in balances turned over by previous treasurers.
    Appeal from judgment of the supreme court, general term, fifth department, affirming order of county judge of Niagara county directing county treasurer to set apart moneys to purchase bonds, etc.

      John E. Pound, for app’lt; S. Cady Murray, for resp’t

      Affirming 24 N. Y. State Rep., 879.

   Peckham, J.

The referee has found as a fact that during the years in question there has been an account on the county treasurer’s books called a general fund, for which money is raised by general tax, from time to time, by the direction of the boards of supervisors of the county, and into which are carried items of money not otherwise especially appropriated, and from which are paid miscellaneous accounts and matters not otherwise generally mentioned in the annual tax levy, and that there has been in such fund at all times since any of the taxes upon the property of the railroad company in Lockport have been paid to the county treasurer a greater sum than the total amount of such taxes so paid to the county treasurer, and that the money in that general fund amounted on the 1st day of July, 1888, to $9,985.19, and that amount was then held for and subject to the payment of miscellaneous demands and expenditures of the county not specially provided for by the board of supervisors.

From and exclusive of the year 1878, to and including the year 1886, taxes have been annually paid to the county treasurer by the railroad company upon the assessed valuation of its railroad in the city of Lockport, and there is no proof that any part' of the sums of money so paid has ever been used for any purpose whatever. The law, chap. 907, § 4, of the Laws of 1869, as amended by chap. 283 of 1871, appropriates all such moneys to a specific purpose, and it is the duty of the county treasurer to set them apart for the purchase of bonds or for the sinking fund provided for in the statute. Matter of Clark v. Sheldon, 106 N.Y., 104; 8 N. Y. State Rep., 537.

Although appropriated by law to such purpose, the moneys have never in fact been used as the statute requires, and as there is no proof of their ever having been paid out, the presumption is that they are still in the hands of the county treasurer. Certainly we should never indulge in the presumption, without proof, that the moneys have in fact been used for some purpose other than that commanded by the statute. To use the moneys for any other purpose would be to misappropriate them, and proof of such misappropriation would have to be made before the fact could be found.

In this case we have a general fund into which the moneys have probably gone. When received by the different county treasurers they should have used the moneys as directed by the statute. This they have not done. The other demands upon the treasury have been met, and at all times there has been money in the general fund largely in excess of these moneys in question.

We think, as the evidence stands, it is entirely proper to assume that the general fund contains these moneys. If not, they have been misappropriated, and there is, as I have said, no evidence of that fact It is true it is stated that since 1877 the board of supervisors have made no provision in raising taxes for money to buy bonds or create a sinking fund under this statute. Hence a witness testified that the county treasurer had not, to his knowledge, during that time had in his hands any money or funds applicable to purchase bonds of the city or to create a sinking fund. But it is plain this is simply a conclusion of the witness based upon the claim that in raising the taxes for each year since 1877 no provision was made to raise enough so that the treasurer might set off the tax collected of the railroad company to purchase bonds or to create a sinking fund.

As the law appropriated the money collected of the railroad company to such purchase the failure to otherwise raise enough to provide for such payment, would be wholly immaterial. The railroad company provided such a fund by paying the tax, and the money thus was ipso facto appropriated to the purchase of the bonds or the creation of the sinking fund. But the large excess at all times in the general fund above described, beyond the amount of the taxes paid by the railroad company to the treasurer, shows that even if the amount paid by the company had been used by the treasurer for its proper purpose, there would still have been money in the treasury during all these times unappropriated to any special purpose and subject to be drawn upon for the payment of the debts of the county.

The fact that the objects in each year for which the taxes of the-year were raised did not include the purchase of the bonds of the city, nor the creation of a sinking fund, is answered by the statute,, which itself appropriated specifically the tax paid by the railroad company to the purpose therein mentioned, and if enough were not raised beside, the only result might be that a deficiency of funds required for other purposes might arise. The excess, however, shows that even this fear would have been unfounded.

The funds' thus paid into the county treasury having remained, therein from the time of such payments up to the present moment, there has been a continuing duty resting, upon the county treasurer to make the application provided for by the statute, and this duty continues up to the moment he discharges it by making the application which the statute commands. In such case the statutes of limitation do not apply. Herein lies the clear distinction between this case and that of Strough v. Board of Supervisors, 119 N. Y., 212; 28 N. Y. State Rep., 967.

The county of Jefferson, through its county treasurer, in that case, instead of applying the moneys to the purchase of bonds, or the creation of the sinking fund, misappropriated them to the payment of countyand state taxes. From that moment of misappropriation a cause of action arose in favor of the town, and the statute of limitations commenced to run. Here there has been no misappropriation. .The fund still remains in the hands of the county treasurer, and his duty to invest it as the statute requires is still as imperative as it was the first moment the fund came into his hands. It is not necessary that the particular moneys paid by the railroad company should be identified. It is not a case of pursuing trust funds in the ordinary acceptation of the term. Thp case bears more resemblance to that of Van Alen v. American National Bank, 52 N. Y., 1, where the moneys had been deposited in the bank, and had been mingled with other moneys of the depositor and of the bank, and of course the particular moneys could not be identified. This court held it was a question of title, and, the funds being still in the defendant’s hands, it was held liable to pay them over to the plaintiff.

Here the county treasurer has been paid certain sums of money which he has not used, and which are still subject to his disposal in a legal and proper manner. The court under the statute may make an order that he shall dispose of the money in the manner therein prescribed, and an action is not, under these facts, the proper means of redress.

Neither is it important that the present defendant did not receive all the moneys directly from the railroad company. The other county treasurers, his predecessors in office, received the moneys ex officio, and failing to do with them as the statute required, they paid them over to their successors in office at the expiration of their respective terms, and the defendant now holds them by virtue of his position as county treasurer.

We think the order of the court below was right, and it should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    The People, App’lts, v. The Ulster & Delaware R. R. Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    1. Railroads—Constitutional law—Laws 1889, chap. 236.
    Chapter 430 of Laws of 1874 provides for the re-organization of railroads sold under mortgage and for the formation of new companies in such cases. Chapter 236 of Laws of 1889 (amendatory of the above act), declares that nothing contained in the act of 1874 shall be construed to compel a corporation organized under it to extend its road beyond the portion thereof constructed at the time the "corporation acquired title, provided the board of railroad commissioners certify that the public interests do not require such extension, and that if such certificate was made it should be a bar to any proceedings to compel the road to make such extension or to annul its existence for failure to do so. EM, that the amendatory act was neither unconstitutional nor void.
    2. Same.
    The amendatory act does not confer judicial power upon the board of railroad commissioners.
    3. Same.
    It is competent for the state to surrender any right of action which it may have, e. g., a forfeiture.
    4. Same—Costs—Extra allowance.
    Taxes paid under chapter 361 of Laws of 1881 by a corporation do not necessarily show the value of its franchise and perhaps may not show it correctly at all. And upon the question of an extra allowance, the state is not bound by such a method of arriving at the value; other evidence must be produced.
    Appeal by plaintiff from a judgment dismissing the complaint with costs, entered upon a verdict directed by the court, and from order granting an extra allowance of $1,500 to defendant.
    Action to annul the charter of defendant as a railroad corporation re-organized pursuant to chap. 430, Laws 1874.
    The ground of action alleged is that the defendant has failed to construct or operate any portion of its road between Stamford and Oneonta, a distance of about twenty-six miles, under the provisions of its charter as required by law, and has, therefore, forfeited all its franchises.
    Defenses: 1. A denial that defendant “ ever became bound or liable or had lawful right or authority or legal or pecuniary ability to construct any part of said projected railroad between Stamford and Oneonta.

      2. That the located line of said railroad beyond Stamfo'rd, through the town of Harpersfield “ runs on the side of a mountain through a sterile, barren country, almost uninhabited and there are not more than one or two houses on the line, and no roads leading thereto,” etc., and that another railroad has been projected from Stamford to Bloomville and thence to a point at or near Oneonta by a different route and two other corporations are to-build and operate the same. And which when completed can he operated in connection with that of defendant.
    3. That the defendant has made annual reports of its property and earnings under the laws of the state upon the railroad as operated from Bondout to Stamford and has been assessed thereon as well as upon its franchise and business and has paid the taxes thus assessed, etc.
    4. That the action is barred by the statute of limitation.
    5. That after this action was commenced the legislature passed an act amending the reorganization act of 1874, by adding a new section relieving a corporation' thus organized from finishing a railroad not then completed, provided the board of railroad commissioners shall certify that the public interests do not require itr and that such certificate has since been made in relation to the completion of that portion of the road beyond Stamford.
    The present road was built by the Bondout & Oswego B. B. Co., the name of which was changed to the New York, Kingston & Syracuse B. B. Co. Mortgages given thereon were foreclosed and the property bid in for the bondholders, who reorganized and formed the corporation defendant.
    The town of Harpersfield, which was instrumental in having this action brought, had issued bonds for the sum of $100,000 and purchased stock in the Bondout & Oswego B. B. Co. on the condition, it is claimed, that the road should be constructed through that town. It is .also claimed that the company was then at woi’k in said town, but as soon as the bonds were sold and the money obtained it stopped work and nothing has since been done.

      M Countryman, for app’lts George ZdbrisMe, for resp’t.
   Learned, P. J.

We have nothing to do in this case with the alleged bad faith or breach of contract in the dealings of the Bondout & Oswego Bailroad with the town of Harpersfield. That town is not the plaintiff.

The only question is, whether the people have a right to .annul the charter of the Ulster & Delaware Bailroad Company for the failure to' construct a certain part of the route originally laid out.

We do not consider it necessary to decide the question whether the defendant, taking title under the foreclosure "of a mortgage-made by the Bondout & Oswego Bailroad Company, or New York, Kingston & Syracuse Bailroad Company, and organizing under chapter 430 of the Laws of 1874, became bound to complete the road as originally laid out.

We have great doubt whether it came under any such liability. But, as we think there is a conclusive defense to this action, we deem it best to pass the question above mentioned.

Chapter 236 of the Laws of 1889, adds a new section to chapter 430, Laws of 1874, being the reorganization act. This declares that nothing therein contained shall be construed to compel a corporation organized under that act to extend its road bey-" and the portion thereof constructed at the time the corporation acquired title, provided the board of railroad commissioners should certify that the public interests did not require such extension.

It provided that, if such certificate should be made, the corporation should not be deemed to have incurred any obligation to extend its road; and that such certificate should be a bar to any proceedings to compel it to make such extension or to annul its existence for failure so to do ;' and should be final and conclusive in all courts and proceedings whatever.

Under this statute the defendant petitioned the railroad commissioners. Notice of the prosecuting the-petition was published and was served on the town of Harpersfield, which had been the active party in instigating the present action.

On the 24th of June, 1890, the board made and filed its certificate in compliance with said act. This is set up by defendant in an amended answer.

Now it is plain that this certificate is a bar to this action, unless the plaintiff can show some reason why the statute does not apply, or why it should be held unconstitutional or void. The plaintiff insists that the statute is void because it assumes judicial power. We do not think that the language that the reorganization act “ should not be construed to compel a corporation” to do-a certain thing is an assumption of judicial power. It is simply a mode of stating the meaning of the legislature in making the amendment. But the further language that the certificate, when made, should be a bar to proceedings like the present is certainly not open to the objection that it assumes judicial power in construing statutes.

Further, the plaintiff insists that this act is unconstitutional in giving judicial power to the board of railroad commissioners.

We do not see that judicial power is given to the board. Administrative duties often require an administrative officer to decide , on the proper course of action and for that purpose to ascertain what are the facts in the matter before him.

But he is not, therefore, exercising judicial functions. In the present case the people have the right to annul the charter if they show good cause. The legislature has the right, in behalf of the People, to refuse to annul the charter, even if there be good cause. And it has a right to say that the charter shall not be annulled anet that the corporation shall not be relieved from any obligation which it might have owed to the state to do a certain act.

Such being the right of the legislature, we see no reason why it may not authorize a board of its administrative officers to inquire what the public interests demand in that respect, and to decide whether the public interests do or do not require the corporation to do a certain act.

The only parties are the People speaking through the legislature, on the one hand, and the corporation on the other. We have no occasion to say if there was a controversy between the corporation on one side and some individual on the other, whether the legislator could compel the submission of that controversy to this board. That does not arise here.

It is only the state itself which says, if our board of railroad commissioners certify that the public interests do not require the building of a certain piece of road, then it need not be built.

Yery possibly the legislature could not declare that a certificate of the railroad commissioners should be a bar to an action by one. private individual against another. But it is certainly competent for the state to surrender any right of action which it may have.

It could declare that no action on its behalf for the annulling of a charter should be further prosecuted. So here the legislature has declared that if the board of railroad commissioners give a certificate, then the state will not further prosecute its action.

The legislature is certainly competent to stop a litigation which is prosecuted on behalf of the state. There is no interference with the judicial power when a plaintiff declines further to prosecute his case. And this statute, by which the legislature says that a certain certificate of 'state officers shall put an end to a state prosecution, does not interfere with any judicial authority.

There is no need of a discussion about the power of the legislature to enact laws which shall take effect upon certain conditions, or upon its power to delegate legislative functions. For there is nothing in this statute but a waiver of a forfeiture, or, in other words, a refusal to annul a charter. The legislature authorizes certain boards to convey the property of the state, as, for instance, land under water. Cannot it authorize another board to give a certificate which shall practically waive a forfeiture, which no one but the state could enforce ?

The state has frequently by statute extended the time within which a corporation was to build a road. This was a waiver of the forfeiture for not building. * And a statute of that kind would be a bar to an action for forfeiture, if such an action should be commenced, or if such an action were pending. The state is not bound to enforce a forfeiture, and if it waives a forfeiture] no private individual or body can object.

It seems to us that the error on the part of the plaintiffs’ counsel is in the application of very sound and important doctrines. If this were a controversy between two private individuals it might well be doubted whether the legislature could enact that a certificate of railroad commissioners should be a bar. But the real meaning and plain effect of the statute is simply that the state will not continue a litigation when its own board of officers have said that the public interests do not. require it The attorney-general stands in the strange position Of insisting upon prosecuting an action for the state which the state has said shall be barred. Of course this is explained by the not unusual circumstance that the attorney-general allows some other party to úse his name of office. But that other party, the town of Harpersfield, has no right to enforce a forfeiture which the state has waived, or to seek to annul a charter on grounds which the state has declared shall not be a cause for such annulling.

The plaintiff further insists that the reasons given by the board of railroad commissioners for its certificate are not satisfactory. It was not bound to give any reasons, though this was a very proper course. But it is not in our power to review the action of the board, even if we thought its reasons improper or insufficient, which we do not. It is enough that the statute makes the certificate, not the reasons, conclusive and a bar.

The judgment of the learned justice is correct and should be affirmed, with costs.

Another question is presented by the appeal from the order granting an extra allowance. There is no doubt that the case is one in which an extra allowance was proper. But the plaintiff urges that there was no proof of the value of the corporate franchise and that only upon that value could the allowance be based. Conaughty v. Saratoga County Bank, 92 N. Y., 401.

The defendant, to show the value of this franchise, showed the taxes which it had paid for several years, under the statute, chap. 361, Laws 1881. The defendant claims that this statute imposes a tax on corporate franchises and not on corporate property. People v. Home Insurance Co., 92 N. Y., 328. That hence the valuation on which the tax is assessed must be a measure for the franchise taxed. Now the statute may impose a tax on an amount which shall greatly exceed the real value of the franchise. The mode in which a corporation is assessed under this statute-merely determines the amount at which, for the purpose of tax ation,'its franchise shall be .estimated.

We think that this assessment does not bind the state as to the actual value of the franchise when such value had to be ascertained on the motion. Not only does' it not bind the state, but we do not see that it is evidence. The question before the learned j ustice was what was the value involved, that is, what was the value of the franchise. And upon that point these several transacations of the defendant do not seem to us to be evidence. We think, therefore, that the order should be reversed, only on the ground that the vajue of the franchise was not shown. Judgment affirmed, with ‘costs. Order of extra allowance reversed on the ground that the value of the franchise was not shown.

Landon and Máyham, JJ., concur.


text:
    John Borley, Resp’t, v. The Wheeler & Wilson Manufacturing Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    1. Trial—Exceptions must be taken to authorize review, of rulings.
    Where a party intends to review rulings made upon a trial it is not enough that he objects to evidence, he must also take proper exceptions; otherwise the court will not examine the matters objected to.
    2. Same—Adjournments.
    Adjournments are in the discretion of the trial court, and except in a case of abuse the general term will not interfere.

      Appeal from a judgment in favor of plaintiff, entered on the report of a referee.
    The action was to recover for services of plaintiff, performed under a contract and at defendant’s request, as a canvasser in selling sewing machines and making collections.
    The referee found that defendant was a foreign corporation, and had an office and place of business in the city of ¡Kingston, which was in charge of Edwin E. Tallman, and that he was duly authorized to and did make with plaintiff for defendant the written contract set forth in his report He also found that the written contract was modified by defendant in respect to allowance of compensation. That under the contract and agreement between the parties the plaintiff sold machines to several different persons on which sales the sum of $69.75 for unpaid commissions was due to plaintiff. Also, that at the request of defendant the plaintiff had during his employment collected monies from various parties, the value of which services were $7.72. For these services, with interest from September 12,1888, the date of the commencement of the action, the referee found for the plaintiff, and directed a judgment therefor in his favor, with costs.
    * On the trial said Edwin E. Tallman, defendant’s agent at Kingston, was sworn for defendant. On an adjourned day for hearing, defendant secured an adjournment for the purpose of recalling said Tall man as a witness, he then being absent. B ut on the ad j ourned day for the absence of the same witness, the referee refused to grant the second adjournment under the circumstances, on the ground that defendant did not show any time when he could reasonably secure the attendance of said Tallman, who was then out of the state, and the cause had been set down peremptorily for the day named.
    The defendant excepted to the refusal of the referee to grant this second adjournment, which is the only exception taken on the trial.

      Alva S. Newcomb, for app’lt; G. B. Adams, for resp’t.
   Learned, P. J.

There are no exceptions in' this case except to the refusal to adjourn. Therefore none of the rulings made on defendant’s objection can be heard. This is settled in Briggs v. Waldron, 83 N. Y., 582, where the court would not hear an argument on rulings, although there was a stipulation that it was understood upon the trial that an exception followed every objection.

The reasons given by the court of appeals in that case are very sound ; the rule there stated should seldom, if ever, be disregarded.

On the refusal to adjourn we need only say that adjournments are in the discretion of the trial court. We should not interfere unless in case of abuse, and nothing of that kind appears.

The defendant claims that certain findings of the referee are unsupported by evidence, especially as to the Dorsey sale and as to commissions. But the evidence to support these findings is in the case; only the defendant claims that it was improperly admitted.

As above stated, the defendant did not except to the admission of the evidence, and therefore we have nothing to review. In the language of the case above cited, which should be fully understood, “ the provisions of law which require a party desiring to review rulings upon a trial to take exceptions in proper form are established for the convenience of courts as well as for the protection of parties; and the latter cannot by stipulation have their cases heard on appeal without regard to those provisions.” Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


author: Mayham, J.

text:
    Benjamin F. Dingley, App’lt, v. The Star Knitting Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Master and servant—Negligence.
    In an action for alleged, negligence it appeared that the plaintiff, aged 15, had operated other similar machines in other mills and had operated this particular one for three months; a part of his duty was to clean waste from under the machine and to do this he had to reach under it with his hands. The machine was in good order and of the kind usually employed in similar mills. To control the power, there were two pulleys on a shaft; one stationary, giving power, the other loose, thus allowing the belt to continue to revolve but without communicating any power. While the machine was in motion the boy removed the helt from the stationary pulley to the loose one, thus stopping the machine, and commenced to remove waste. In some unknown manner the machine' started and the boy’s hands were caught and injured. Held, that plaintiff could not recover.
    Appeal from a judgment entered on a nonsuit.

      J. F. Orawford, for app’lt; F. W. Douglass (F. Countryman, of counsel), for resp't.
   Mayham, J.

This is an appeal from a judgment entered upon a nonsuit of the plaintiff at the Albany circuit.

The action was brought by the plaintiff for an injury to his infant son, alleged to have been caused by the negligence of the defendant.

The defendant, at the time of the alleged injury, operated a knitting mill in which the plaintiff’s son, aged fifteen years, was . employed.

As a part of his duty in such employment he was required to clear out the waste which accumulated under a machine, to do which he was required, by the defendant, to reach under the machine with his hands.

The machine sat upon the floor of the mill, was composed largely of iron, and weighed about 2,000 pounds, and was kept in position by gravity, not being in any way fastened to the floor except by its own weight.

The machinery was propelled by means of a belt which passed over a revolving drum upon shafting in the upper part of the mill, which was applied to the machine, for propulsion of the same, by a pulley firmly attached to a shaft in the machine on which was a cylinder adjusted for carding wool or cotton fabric.

On the same shaft and alongside of the pulley so attached to the shafting, was another pulley which was not fastened to the -shaft, but which revolved freely around the same.

For the ¡purpose of stopping the machine this belting was removed by the hand from the pulley attached to the shaft,' to the revolving pulley, so that when the band was removed from the fixed to the revolving pulley the band would continue its revolutions upon the revolving pulley, but the machine would stop running.

This machine was constructed and propelled in the ordinary way for the construction and propulsion of such machines.

The proof shows that the plaintiff’s son had been accustomed to operate such machines in other mills, and had, at the time of the injury complained of, operated this machine for about three months.

On the 1st of October, 1884, while he was operating the machine he removed the belt with his hand from the tight to the loose pulley on the shaft, and commenced with his hands to remove the waste from the machinery, as was his custom and as he was required to do, and while in that position the machine started, and in the revolutions of the cylinder his hand was caught and seriously injured.

There is no direct proof that the machinery was out of order, or that the machine was not of the kind ordinarily in use in that kind of manufacturing; on the contrary the evidence discloses that this machine was in every respect precisely like all other “ second breakers ” in use, and like those used" by the plaintiff’s son in other mills in reference to the fixed and loose pulleys, and the other methods of sliding the belt from one to the other; there was proof that on two or three previous occasions this belt had shifted from the loose to the fixed pulley after it had been changed to the loose pulley to stop the machine, and that that fact was communicated to the defendant’s foreman.

' The argument of the appellant is that the jarring of the mill must have moved the machine so as to have thrown the shafting of the machine out of line with the main shafting, and thus caused the belt to slide back upon the fixed pulley, thereby putting the machine in motion after the belt had been removed, but there is no testimony in the case directly supporting this theory, but the testimony of the defendant’s witnesses is that the machine was not out of place, but was precisely where it set for months before and after the accident, and respondent argues that the boy in removing the belt from the fixed to the loose pulley did not hold it there long enough to adjust it in line on the drum on the main shafting with the loose pulley on the machine shaft.

Upon these facts, the learned justice, at the conclusion of the evidence, nonsuited the plaintiff.

The plaintiff in this action before he can recover, as in all cases of negligence, is required to establish that the employe was guilty of some negligent act, or omission, which caused or produced the injury, and also that the party injured was guilty of no negligence on his part which contributed to the injury.

The rule is concisely stated in Cahill v. Hilton, 106 N. Y., 512; 11 N. Y. State Rep., 26, as follows:

“ To authorize a recovery in an action by a servant against his master for injuries received by the former in the course of his employment, the evidence must establish personal fault on the part of the master, or what is equivalent thereto, and he is entitled to the benefit of the presumption that he has performed his duty until the contrary is shown; so, also, the plaintiff is required to show affirmatively his own freedom from negligence, and while this is usually a question of fact, and the absence of contributory ■negligence is often to be inferred from the nature of the accident and the circumstances of the case, that conclusion cannot legally be reached unless such circumstances are proved as legitimately and reasonably, lead to that result, and if the facts proved do not fairly tend to support a presumption of freedom from neglect, the question becomes one of law for the court.”

While the evidence in this case may not charge the plaintiff’s son with contributory negligence, it clearly fails to establish negligence on the part of the defendants in furnishing this machine for the use of the employe.

It was the kind of machine ordinarily used in this business. It had operated well for a long time before this accident, and without any alteration or readjustment continued to operate well for a long period thereafter, and there was no evidence from which the jury could properly have found that it was an unsafe or improper machine for the defendant to furnish for the use of its employees.

While a master is required to furnish reasonably safe machinery, tools and implements for his employes, he is not required to furnish such as, at all times, are absolutely safe, and is not responsible if, without the fault of the master, the machinery or tools may produce injury to the employee.

A master is not bound to furnish the best of known or conceivable appliances; he is required to furnish such as are reasonably safe, and to see that there is no defect in those which his employes must use.

The test is not whether the master omitted to do something he could have done, but whether in selecting tools and machinery for their use he was reasonably prudent and careful; not whether better machinery might not have been obtained, but whether that provided was, in fact, adequate and proper for the use to which it was to be applied.

These rules are not violated when such machinery becomes unsafe only when negligently or carelessly used.. Stringham v. Hilton, 111 N. Y., 195, 196; 19 N. Y. State. Rep., 621; Burke v. Witherbee, 98 N. Y., 565; Hickey v. Taaffe, 105 id., 26; 6 N. Y. State Rep., 426.

If a machine or appliance, which is not absolutely dangerous, had been in daily use for a long time, and had proved adequate, safe and convenient, its use may be continued without the imputation of negligence to the employer. Stringham v. Hilton, supra; Kaye v. Rob Roy Hosiery Co., 51 Hun, 522; 21 N. Y. State Rep., 668. Applying this rule to the machinery in question, it could not be said that the defendant was negligent in its use in this ease.

If therefore the evidence was insufficient in law to charge the defendant with furnishing Unsafe and inadequate machinery, and such machinery when tested by the rules governing such cases was sufficient, then the defendant has discharged all the duty he owed to bis employe, and could not be legally held liable to the plaintiff in this action.

This case differs from the case of McCarragher v. Rogers, 120 N. Y., 526; 31 N. Y. State Rep., 595, cited by the plaintiff.

In that case the court held that the appliance was dangerous in itself, and was not properly guarded by a railing or netting, and that defect caused the injury.

In this case there is no such fact, and none can be deduced from the evidence, but on the contrary the machine in use was the best known to the business.

Nor do we think that the fact that the employe injured was a boy fifteen years of age changes the rule in this case. In 113 N. Y., 540; 23 N. Y. State Rep., 618, it was held that when the minor is familiar with the machine, and its character and operation are obvious, and he is aware of and he appreciates the danger to be apprehended from working the machine, the fact that he is a minor does not alter the general rule. And he takes upon himself the risk incident to the employment.

On the whole we see no evidence in the case which, if fully believed by the jury, would in law charge the defendant with negligence in furnishing this machine to be used by the plaintiff’s son . and upon which a verdict could be legally predicated.

The court was right in nonsuiting the plaintiff, and the judgment should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Fred Scheidig, App’lt, v. Edward H. Bemis et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Bills and notes—Usury—Evidence.
    Plaintiff sued upon a note, made by defendants, payable to the order of plaintiff, for the “sum of eighty-five dollars and fifty-eight cents, wiih three years interest at six per cent., at the First National Bank of Glens Falls, N. Y., one year from the date of said note.” The complaint was dismissed upon the ground that the note was. usurious upon its face and the referee declined to receive plaintiff’s evidence as to the consideration. Held, error; the note was not usurious upon its face; and in any event usury is a defense which must be both pleaded and proven. Evidence as to the consideration should have been received.
    Appeal from judgment dismissing complaint, entered upon the report of a referee.
    This action was brought upon a promissory note made by the defendants payable to the order of the plaintiff for the “sum of $85.58 with three years’ interest at six per cent., at the First National Bank of Glens Falls, N. Y, one year from the date of ■said note.”

      The answer of the defendants does not deny any allegation of the complaint, but sets up a plea of usury, alleging that plaintiff ■agreed to extend the time of payment of the said sum of §85.58 for one year, upon condition that the said defendants should execute their note for that amount, “ and also pay to the plaintiff 'three years’ interest upon the said §85.58, one year from date thereof, being $10.26 more than the lawful interest upon the same.”
    The defendants moved for a dismissal of the complaint and for judgment upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The plaintiff then offered to prove that at the time of .the making and delivery of said note, the defendant Edward H. Bemis was owing plaintiff $85.58 for goods purchased by him three years previous thereto, and that said note was given to secure said indebtedness ; that at that time the said defendant Edward H. Bemis was indebted to the plaintiff in the sum of $85.58 with three years’ interest thereon ; to which offer the defendants’ counsel objected and the referee sustained the objection of defendants and plaintiff duly excepted. Thereupon the referee granted the motion of the defendants and dismissed the complaint, with costs.
    To which ruling the plaintiff’s counsel duly excepted.

      II. Prior King, for app’lt; D. S. Potter, for resp’ts.
   Learned, P. J.

The defendant must make out his title to relief on the ground of usury by allegation and proof. Long Island Bank v. Boynton, 105 N. Y., 656 ; 8 N. Y. State Rep., 54.

He cannot assert that the complaint in this case shows no cause of action, because the note is not void for usury unless there was a loan or forbearance of money, goods or things in action. 2 R. S., m. p. 772, § 5.

If real estate is sold and the purchase money mortgage is antedated, this is not usurious. Frank v. Davis, 23 Abb. N. C., 419 ; 25 N. Y. State Rep., 207.

The cases cited by defendant, holding that obligations which, on their face, appeared to be made by a married woman, showed no cause of action, do not apply..

This note does show a cause of action, unless it should appear that the consideration therefor was such that more than six per cent interest was agreed upon. But the note itself does not show what was the consideration for which ir was given.

It was undoubtedly competent for the plaintiff to show, if it became necessary to do so, the' consideration of the note, so as to disprove any usury which might be asserted by defendant

But furthermore the note is not “prima facie usurious.” This is distinctly laid down in Marvin v. Feeter, 8 Wend., 533.

The defense there was two-fold. First, that the original notes for which the notes in suit were given were usurious. Those original notes, bearing date March 17, 1828, bore interest from November 24, 1827, and it was claimed that therefore they were usurious. The court said: “ If the notes were to be considered evidence of money lent at their date there would, perhaps, be more than seven per cent reserved.

11 But it is well known that notas are given for property sold and for other business transactions .as well as for money lent If a merchant sells goods upon credit, and six months after the sale the purchaser gives his note bearing- interest from the time of the sale, the transaction is an honest one.” To the same effect is the language of the court in Ewing v. Howard, 74 U. S. (7 Wall.), at 505.

We cannot learn from the note itself what was the consideration for which defendant gave it; whether he received the goods or money, or if money, how much.

Until that is shown the note does not show that it is usurious. A merchant selling goods may charge for credit more than the legal rate of interest and the transaction will not be usurious.

Judgment reversed, referee discharged, new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.


text:
    Frederick P. Allen, Assignee, etc., App’lt, v. Isaac McConihe, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890)

    Stocks—Measure or damages for .disregard or orders to sell.
    O. 0. & Co., stock brokers in Troy, purchased through their IT. Y. agents, for defendant, certain stocks, upon a margin. Defendant gave to O. 0. & Co., positive orders to sell at a price fixed, which orders O. 0. & Co. disregarded. Subsequently O. C. & Co. failed and their N. Y. agents, to whom they were indebted and who did not know the defendant in the transaction, closed out the stocks at a smallerprice than that fixed. Held, that defendant’s measure of damages was the difference between the price, he fixed and that at which the IT. Y. agents sold.
    Appeal by plaintiff from so much of a judgment entered on report of a referee as allowed defendant’s counterclaim.
    The following is the opinion of the referee: .,
    Matthew Habe, Referee.—In the absence of any proof of fraud or mistake, I think that the statements rendered to defendant by the assignors of the plaintiff, and retained by defendant without objection, are to be-taken as true. Defendant’s testimony shows clearly that he. understood in a general way the manner in which Ogden, Calder &' Co. transacted their business. He- understood that the stocks which he ordered were not purchased directly by them, but though their agents, Work, Strong & Co., in New York. Neither he nor Ogden, Calder & Co. had any actual knowledge that the stocks reported to be bought and sold by Work, Strong & Co. were actually so bought and sold. Both understood that for the truth of these statements reliance was placed upon Work, Strong & Co. This acquiescence on the part of the defendant covers, I think, the charges for interest as well as those for principal. Kniclcerbockei' v. Gould, 115 N. Y., 533 ; 26 N. Y. State Rep., 651.
    It fairly appears, I think, from the evidence, that defendant could have obtained any of the stocks from Ogden, Calder & Co. at any time before the assignment, by paying up what was due thereon.
    I hold, therefore, that the plaintiff has established the full amount of his claim, and that he-would be entitled to recover the entire amount claimed in the complaint but for the matters which have been proved by way of counterclaim.
    I do not see, however, that the defendant has proved that he was damaged by any unlawful or unauthorized sale of stock, if there was any such unlawful or unauthorized sale.
    The only item as to which defendant is entitled to recover upon his counterclaim, is in my judgment, the failure of Ogden, Calder & Co. to sell the Manhattan stock at 111. The order to sell was peremptory. If Ogden, Calder & Co. chose to disobey it in the hope that the stock would go to a higher figure, this was at their own risk. They were not requested to exercise any such discretion by defendant. Conceding that their intention in failing to obey defendant’s order was to benefit defendant, still it was a voluntary act on their part, and their good intentions cannot protect them from liability for the effect of their failure to obey the orders of their principal.
    It was part of their implied contract to obejr such orders. Markham v. Jaudon, 41 N. Y., 235, 239.
    The only question under this head is as to the measure of damages.
    The stock did not again reach 111 after ' defendant learned of his brokers’ failure to obey orders, until it was sold by the plaintiff, Work, Strong & Co., at 97.
    I do not think the rule of damages laid down in Baker v. Drake, 53 N. Y., 211, has any application to this case. That rule related solely to the case of an unlawful conversion of the stock by sale. In that case it was held that where the customer was advised of an unauthorized sale of stocks, that if he desired further to prosecute the adventure, he had the right to disaffirm the sale and require the broker to replace the stock, and upon a failure or refusal to do this, his remedy was to replace it himself, and that the advance in the market price from the time of the sale up to a reasonable time to replace it after notice of sale afforded a complete indemnity, and was the proper measure of damages.
    But this is a very different case. Defendant had not fully paid for his stock. Ogden, Calder & Co. held it not only as his agents, but as pledgees. If they had sold as they were ordered to sell, defendant would have at once had the benefit of his order, and would have been entitled to credit in his account with Ogden, Calder & Co. with the proceeds of the sale. When he learned that his brokers had failed to obey orders, I do not think he was obliged to take any further step to secure his rights.
    He told his brokers, in substance, that he was dissatisfied, and that he did not acquiesce in their omission to obey his order. The stock was then below 111, and continued falling until it was sold without his consent at 97. If he had requested them to sell at a lower figure, that might be construed as a waiver of his previous order, which he had never rescinded. Ogden, Calder & Co. knew that they had violated the orders of their principal. They must be presumed to have known that they had incurred a liability thereby. They, were bound to credit their principal with the value of the stock at the price at which they were ordered to sell, as of the time when they could have sold it at that price. The stock after that was, in my judgment, carried by them at their own risk. Defendant had neither possession nor control of it. Perhaps they thought the stock would be up again, and that they could make themselves good; but whatever they may have thought or expected, the order to them not having been rescinded, and their omission to obey the principal’s orders not having been ratified or condoned by him, any loss that resulted was their loss, and not defendant’s. The amount of defendant’s actual damage was the difference between the stock at 111 and the price for which the stock was afterwards sold (97), and which defendant has received by credit in his account. This difference is $4,200, for which, with interest from August 18, 1887, the day on which Ogden, Calcler & Go. could have sold the stock at 111, defendant is entitled to be credited in this action.
    I have, therefore, decided that plaintiff is entitled to recover the amount of his claim, $8,841.76, with interest from January 1, 1888, after deducting therefrom the said sum of $4,200, with interest from August 16, 1887, making the amount of the recovery at this date (June 27, 1890), $5,193.79.

      Albert Smith, for app’lt; J. K. Long, for resp’t.
   Judgment affirmed on opinion of referee.

■ Learned, P. J., Landon and Mayham, JJ., concur.


text:
    Madeline Keenan et al., Resp’ts, v. Anne Keenan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    1. Pleading—Action to set aside conveyance obtained by fraud— Parties.
    The complaint alleged that one J. K. died intestate and left certain real estate, also a widow and several children; that it Was agreed that the widow should hold the property for all the children until some arrangement was made for a sale; that a paper was presented to H. K., a son, now deceased, the character of which was misrepresented; that H. K. and wife signed it, supposing it to be in aid of the agreement above stated; that it proved to be an absolute deed to the widow of J. K., the defendant here. The plaintiffs were the widow and infant children of H. K. They asked that the deed be set aside. Held, that the complaint stated a cause of action, and that the action was properly brought by the widow and heirs at law of H. K., to whom the right of action had descended.
    3. Same.
    The fact that the other children of J. K. signed the deed did not make them necessary parties, there being no allegation in the complaint that fraud was practiced upon them, and the deed, being absolutein form, and so far as appears not being objected to by them, cut off any interest upon their part in this action.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.
    The following is the opinion of the court below :
    Putnam, J.—John Keenan died in 1885, intestate, the owner-of the premises described in the complaint, leaving five children, of whom Henry Keenan was one.
    Henry Keenan died intestate on February 7, 1889, leaving plaintiffs, Madeline Keenan and Maggie Keenan, his only children and heirs, and Celestia Keenan, his widow.
    Plaintiffs claim that the deceased Henry Keenan and his wife Celestia (the plaintiff), with the other heirs of John Keenan, deceased, executed a deed of the premises set out in the complaint, and which deed was obtained fraudulently from said Henry Keenan and Celestia; that their signatures thereto were obtained by fraudulent representations as to the contents of the said instrument.
    This action is brought by the plaintiffs as the widow and heirs of the said Henry Keenan, to set aside said deed as to them.
    It is conceded by the defendant that the complaint sets forth a good cause of action in favor of the plaintiff Celestia, to set aside the deed on the ground of the alleged fraudulent representations. It follows that the complaint also sets forth a cause of action in favor of the other plaintiffs to set aside the deed as to them, on account of such fraudulent misrepresentations, if the said plaintiffs have the same right of action to avoid the deed in question that their ancestor had. It is claimed that while the complaint sets out a good cause of action in favor of the plaintiff Celestia to set aside the deed, it also alleged all the facts necessary to be stated in an action to recover dower, and hence that the complaint shows an improper joinder of causes of action under § 484 of the Civil Code.
    I am unable to appreciate the force of this position of. the defendant. This action cannot be deemed one to recover dower. Plaintiff Celestia claims that, owing to fraud and misrepresentations, she and her husband were induced to sign the deed in question, and the object of the action is to set aside that instrument. While the deed stands, of course she is in no position to recover dower. Should the judgment in the action set aside the deed she would then be 'in a position to claim it But such judgment must precede any such claim. Such action would be brought by the plaintiff Celestia against her co-plaintiffs and is one in which defendant would have no interest. If the complaint sets out properly a cause of action to set aside the deed in question for fraud, because the facts therein stated, if set out in another action between other parties and claiming other relief, would entitle plaintiff to that relief and which would be inconsistent with the relief asked for in this-action, this is no ground for the demurrer by the defendant on the ground of an improper joinder of causes of action.
    In substance the complaint claims that Henry Keenan and his wife, Celestia, were fraudulently induced to execute the deed in question in ignorance of its contents. It asks to set aside such deed. It claims that-the lands in question descended to plaintiffs as the heirs and widow of Henry Keenan, subject to the cloud cast thereon by this fraudulent conveyance, which cloud they ask to have removed. There is no inconsistency in the allegations that the land descended to the plaintiffs as the heirs and widow as stated in the complaint, and the allegation elsewhere contained therein as to the execution of the deed in question; which is alleged to have been fraudulently obtained from the deceased and his wife. I also think it was not improper to unite the infant heirs of Henry Keenan with his widow as plaintiffs in the action.
    The claim in the complaint is to wipe out the deed which conveyed the one-fifth interest in the lands left by John Keenan, intestate, to Henry Keenan. Had Henry Keenan lived, it is well settled that such an action as this could have been properly brought by him and his wife as plaintiffs. See Civil Code, £§ 446-8; Simar v. Canaday, 53 N.Y., 298-303 ; McCrea v. N. Y. El. Ry. Co., 23 W. Dig., 334.
    If Henry Keenan and his wife (the plaintiff Celestia) could have properly maintained the action as co-plaintiffs, it would seem to follow that the infant children of Henry, who have succeeded to his title, are also proper co-plaintiffs with the plaintiff, Celestia.
    It does not appear that the other heirs of John Keenan are necéssary parties to this action. The grounds of the action are that defendant obtained of Henry Keenan and his wife their signatures to the deed in question by fraudulent practices. This deed is a simple conveyance by the heirs of John Keenan of his and their interest in the premises in question.
    There is no allegation, and it is not alleged that any such fraud as the complaint alleges, and the demurrer admits, was practiced upon the deceased, Henry Keenan, and his wife, was also practiced upon either of the other grantors. Hence it appears that the deed, void as to John and his wife, may be valid as to each of the other heirs of John Keenan. .
    The deed by its terms conveys an absolute interest in the property to the defendant Hence it does not appear that either of the other grantors named in said deed have any interest whatever in this action.
    If they signed the deed knowingly and without any fraud being practiced upon them, as to them the deed is a valid instrument.
    And it does not appear by any allegations in the complaint that this action could in any manner affect their rights or interests, or the rights or interests of either of the said grantors.
    I do not regard the cases cited by the defendant as parallel. It is possible that the other heirs of John Keenan are proper or necessary parties to the action. I do not think it so appears in the complaint. If such is the fact it is a proper defense for the defendant to assert in her answer.
    It is alleged in the complaint, and admitted by the demurrer, that the deed in question was obtained by fraudulent representations, and it follows that Henry Keenan could, in his lifetime, .have maintained an action to avoid it.
    I have no doubt but what on his death, before the statute of limitations had barred his right of action to remove such fraudulent cloud upon his title, such cause of action descended to 1..3 heirs-at-law.

      In the case of Mitchell v. Mitchell, 5 Wk. Dig., 449, which case was carried to the court of appeals, the action was brought by heirs to set aside a similar alleged fraudulent conveyance obtained from their deceased ancestor, and in neither court was it ever suggested or claimed that the right of action did not descend to the heirs. Plaintiff was defeated on the merits, but the right of the heirs to maintain such an action was conceded by the eminent counsel appearing for defendant as well as by the court. The same may be said of the case of Valentine v. Duryea, 37 Hun, 427.
    If the deed is set aside according to the prayer of the complaint the land goes to the plaintiffs. In fact the land has descended to the plaintiffs subject to the cloud cast upon it by such fraudulent deed. An administrator of Henry .Keenan, deceased, could have no interest in such lands and hence such administrator is not a necessary party in the action.
    I think the allegation in the complaint that Henry Keenan and wife “ executed” the deed in question and that “it conveyed” to defendant all the right which said Henry and Celestia had at the time in question to the premises therein described in connection with the copy of the deed annexed to the complaint, sufficiently shows the delivery of such deed.
    Bouvier defines “ execute ” as follows: “ To execute a deed, which means to make a deed, including especially, signing, sealing and delivery.”
    On the whole I conclude that the complaint is sufficient and that the demurrer should be overruled.

      L. M. Brown, for app’lt; B. S. Potter, for resp’ts.
   Judgment affirmed, with costs, and with leave to defendant in twenty days after notice of this judgment, upon payment of costs below and of this appeal, to withdraw demurrer and answer over, on opinion of court below.

Learned, P. J., Landon and Mayham, JJ., concur.


text:
    The Phoenix Mills, App’lt, v. James A. Miller, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Former adjudication—Foreclosure—Appeal.
    In a ioTtner action, of foreclosure of the premises in question the plaint-tiff here, the Phoenix Mills, though not a party hy the summons was subsequently allowed to come in and defend. Upon the sale therein the defendant purchased the premises in question. The Phcenix Mills opposed confirmation of the sale and was defeated. In the former action one of the defendants therein attempted to appeal from the judgment, but the notice of appeal was signed hy an attorney other than the one hy whom that defendant had already appeared therein and answered. This notice was returned as irregular, there having been no order of substitution, and it was thereafter held hy the general term and hy the court of appeals that this notice did not perfect an appeal. The Phoenix Mills did not appeal in that action In this action of ejectment, Held, that the question whether the _ notice of appeal was sufficient could not be raised, having been determined in the former action in which the court had jurisdiction of the parties.
    Appeal from judgment dismissing complaint.

      Edward J. Maxwell, for app’lt; M. L. Stover, for resp’t.
   Learned, P. J.

This is an action of ejectment. On the 18th. of August, 1884, an action of foreclosure was commenced by David W. Shuler against Margaret Maxwell and others. The Phcenix Mills held an unrecorded deed of part of the premises ; which deed it recorded September 3, 1884. Thereupon the Phcenix Mills applied for leave to come into the Shuler action; and, by consent of the attorney for Shuler, the Phcenix Mills put in an answer in that foreclosure action.

The cause was referred and on the referee’s report the usual judgment of foreclosure was granted, April 7, 1885, the Phcenix Mills appearing by Mr. E. P. White.

About the 10th of June, 1885, and before the sale, Margaret Maxwell caused a notice of appeal from the judgment to be served by E. J. Maxwell as her attorney with an undertaking.

This notice was returned as irregular; and the sale took place June 12, 1885, at which defendant Miller bécame the purchaser.

He received the referee’s deed and was put into possession under an order of dispossession dated September 1, 1885,. by the defendant. Snell, a deputy sheriff.

A motion was made by Elizabeth Maxwell to set aside the sale, which was denied July 17, 1885. The denial was affirmed at general term, November, 1885. Shuler v. Maxwell, 38 Hun, 240. An appeal to the court of appeals from the order of affirmance was dismissed.

Still another motion to set aside the sale was made by Elizabeth Maxwell, and decided June 14, 1887. A motion was made July 7, 1885, by the Phcenix Mills and by Margaret Maxwell to set aside the order of confirmation of the referee’s sale. This was denied and the sale and'report were confirmed.

Now the plaintiff’s ground is that Margaret Maxwell’s appeal and undertaking stayed the proceedings in the foreclosure.

That, therefore, the sale was void and Miller obtained no title.

Now it was decided by this court in the case above cited that the alleged notice of appeal and undertaking did not stay the proceedings. The appeal from the order was dismissed by the court of appeals and, therefore, that court could not have held that the decision of this court was erroneous in matter of law.

In the next place the Phcenix Mills did not appeal, so that even if Margaret Maxwell had ground of complaint that the sale proceeded after her alleged appeal, the Phcenix Mills had none.

The judgment of sale against the Phcenix Mills was not objected to by that corporation, and the sale, therefore, proceeded with the practical consent of the Phcenix Mills.

Again, the Phcenix Mills and Margaret Maxwell were heard on the motion to set aside the order of confirmation and that motion was denied, and the sale and report were confirmed.

Therefore, as against the Phcenix Mills, that sale must stand as-valid and binding. The plaintiff urges that Miller was not a party to that order and, therefore, there is no mutuality and hence no estoppel. But Miller claims under the sale and the order confirmed the sale.

He may well insist that the Phcenix Mills shall not be allowed. in another action to review or reverse that order of confirmation. Farther still, if the appeal alleged to have heen taken by Mar-g'aret Maxwell had been valid, and with the undertaking had entitled her to a stay of proceedings in the action, and if, notwithstanding this, a sale had been made and had been, confirmed, we are not prepared to say that in another action that sale could be held invalid as to a bona fide purchaser at the sale.

Evidently the court had jurisdiction of the parties. If its proceeding was irregular or even contrary to the rules of law, the remedy should be had in that action. If the court officers disregard a stay of proceedings, they must be controlled by the court in the action in which the disregard occurred.

The plaintiff here would have the court in one action hold that a sale was without jurisdiction, which was made in another action and which was confirmed by the court.

We are not willing to take that position.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


author: Bookstaver, J.

text:
    Moritz Rotter, App’lt, v. John Goerlitz, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed January 5, 1891.)

    1. Landlord and tenant—Liability op landlord to tenant por injuries CAUSED BY REMOVAL OP ADJOINING BUILDING.
    Defendant owned two adjoining buildings, a portion of one of which was occupied by plaintiff under a lease for years. Defendant engaged one T. to take down and remove the adjoining building, and cautioned him not to interfere with the wall of the one occupied by plaintiff, but the manner of the work was left to T. In doing the work a portion of plaintiff’s premises was exposed, a .d he sustained injury thereby. Held, that in the absence of fraud, deceit, false representations and of any express covenant, no covenant to repair, or keep in repair, or that the adjoining property should remain in the same condition, could be implied, and that defendant could not be held liable under such circumstances simply because he owned both lots.
    2. Same.
    Plaintiff testified that when the rear part of the adjoining wall was taken down it exposed the whole of one side of his extension, which had no other protection; while defendant and T. testified that such extension was protected by a lath and plaster partition left standing which had no opening except at the ceiling, and that was closed with aboard in a short time. Feld, that the evidence was sufficient to justify a judgment for defendant.
    Appeal from a judgment of the district court of the city of New York for the third judicial district, dismissing plaintiff’s complaint.

      John M. Tierney, for app’lt.; Maurice TJntermeyer, for resp’t.
   Bookstaver, J.

The respondent was the owner of the premises known as Nos. 17 and 19 Greenwich avenue in this city, and the appellant was in occupation of the ground and basement floor of No. 17 as a tenement under a written lease expiring May 1st,, J891. The respondent desiring to build on No. 19 made a contract with Theodore E. Tripler to take down the old building on it and remove the debris. Mr. Tripler was to have sole charge of that work and was especially requested by the respondent not to interfere with the walls of No. 17 in doing it.- In the latter part of June or the first of July, Mr. Tripler and his men commenced work under this contract, and it is claimed by the appellant that in removing the walls of No. 19 the entire westerly side of the extension occupied by him.on No. 17 was exposed, and his carpets, furniture, etc., in that apartment were injured by rain. This action is brought to recover for that injury.

It is true that in every written lease there is an implied covenant on the part of the lessor that the lessee shall have quiet enjoyment of the premises during the demised term, which is not affected by the statute declaring no covenants shall be implied in conveyances of real estate. Moffat v. Strong, 9 Bos., 57 ; Mayor v. Mabie, 13 N. Y., 151; Mack v. Patchin, 29 How., 20; aff’d 42 N. Y., 167.

But, as was said by Beardsley, J., in Cleves v. Willoughby, 7 Hill, 86, speaking of implied covenants in instruments relating to land, “ that doctrine has a very limited application for any purpose to a lease for years, and in every case has reference to the title, and not to the quality or condition of the property,” and in effect is no more than a covenant that the lessor has a right to lease the premises hired and will defend that right on peril of forfeiting his claim for rent. The law recognizes ho other implied covenant in respect to leases that we are aware of, unless it be in the case of a ready furnished house or apartment that it-is reasonably fit for immediate use, and even this has been seriously questioned if not entirely repudiated as the law of this state. Franklin v. Brown, 118 N. Y., 110; 27 N. Y. State Rep., 955 ; Edwards v. N. Y. & H. R. R. Co., 98 N. Y., 249 ; Howard v. Doolittle, 3 Duer, 475 ; Meeks v. Bowerman, 1 Daly, 99.

On the trial of this action it was admitted that the' respondent had given the appellant a lease of the lower floor and basement, of the premises No. 17 Greenwich avenue, which would not expire until May 1, 1891. But no attempt was made on appellant’s behalf to show that this lease contained either a covenant to repair or keep in repair the premises so hired, or that the adjacent property should remain in the condition it was at the time of the hiring, during the whole or any part of the term. Nor was it claimed that any deceit was practised or false representations made by the appellant as to the character or condition of the premises in question, or of the sufficiency of the supporting walls if left to stand by themselves; nor were any representations made as to the fitness of the premises for the purposes for which they were let. Whatever may be argued as to implied covenants, it cannot be claimed that, under such a state of facts, the law of this state will inject into leases a covenant that the landlord will keep in repair the demised premises, or that the adjacent property will remain in the condition in which it was at the time of the letting, when the tenant neglects to have such covenants inserted in them.

On the contrary, Mr. Justice Beardsley in Cleves v. Will supra, says : “The maxim caveat emptor applies to all pm. real, personal and mixed, and the purchaser generally takes risk of its quality and condition unless lie protects himself by an express agreement on the subject.” And this has been reaffirmed with emphasis in Edwards v. N. Y. & H. R. R. Co., supra, and more recently in Franklin v. Brown, supra. 'Nor is the hardship of such a doctrine in this case so great as it at first appears. The appellant had occupied these premises for ten or twelve years previous to the last hiring; he, if anybody, should have known whether or not the extension had independent walls, or was merely a lean-to built against the wall of the adjacent property. We think it clear from the testimony the landlord did not; he had No. 19 surveyed by a competent surveyor before he let the contract to remove the building on it to Mr. Tripler, who reported to him that both 17 and 19 had independent walls, and in making the contract he especially provided that the building and walls of No. 17 should not be disturbed. We also think that the justice who tried the case was fully justified by the evidence in finding, as he must have done, in rendering judgment for the defendant, that no part of the premises No. 17 was disturbed by the respondent directly, or that the performance of the contract he made with Tripler would necessarily cause a disturbance of these premises and in this way inflict an injury on appellant. 1

All the misapprehension in this case arises from the fact that the respondent owned both lots, and his rights and duties as to each have been confused. Let us suppose that A owned No. 19 and B owned No. 17, the lower part of which he had let to 0. Now, had A torn down the walls of his house only, and thus left the broadside of the extension on No. 17 exposed to the weather, because that extension never had any wall of its own, who would have thought of holding A liable to C for any injury his furniture might have sustained by reason of such exposure ? And why not ? Simply because A owed no duty to G, except to remove his walls carefully so as not to injure o’s property through negligence. Neither, under the principles of law above stated, would B have been liable to 0, for B had neither covenanted to keep in repair nor that the adjacent property should remain as it was at the time of the hiring, and G had rented the premises as they were, at his own risk In the absence of fraud, deceit, false representations and of any express covenant, we know of no rule of law by which the respondent can be held for damages under such circumstances simply because he owned both lots; his rights and duties, as far as the different tenants in each were concerned, were in no wise affected thereby.

The only other ground on which respondent could have been held liable in this case was because of some negligence in removing the building on No. 19 whereby appellant’s property was injured.

But it is a rule of law so well settled in this state as to need no discussion here, that where a contractor has undertaken the performance of certain specific work in such a way that the owner has no control or authority over the manner of its performance, the owner is not responsible for the contractor’s negligence in doing the work. This rule is as applicable to work on real property as on personal. Gourdier v. Cormack, 2 E. D. Smith, 254; McEnanny v. Kyle, 14 Daly, 268; 8 N. Y. State Rep., 358 Blake v. Ferris, 5 N. Y., 48; Pack v. City of New York, 8 id., 222; McCafferty v. Spuyten Duyvil & Port Morris R. R. Co., 61 id., 178.

In order to make the owner liable for the negligent acts of another, the relation of master and servant, or principal and agent must exist between them. The evidence does not establish any such relation between the respondent and Mr. Tripler. On the other hand, it shows beyond doubt that Mr. Tripler had sole charge of the work and the respondent had nothing to do with it.

The only exceptions to the last above stated rule which we know of are where the work originally contracted to be done is unlawful in itself, is extremely hazardous, as blasting, Buddin v. Fortunato, 31 N. Y. State Rep., 278; Hay v. The Cohoes Co., 2 N. Y., 159 ; Hexamer v. Webb, 101 id., 387; 1 N. Y. State Rep., 46, or necessarily involves the doing of an injury to another. In such cases the owner cannot be allowed to -shift the burden of his own wrong or the extreme hazard to the shoulders of his contractor. But taking down an old building is neither unlawful nor does it involve unusual hazard. The question then is did the performance of the contract necessarily involve the doing of an injury to the plaintiff ? Obviously, if the walls of the two buildings were entirely independent, tearing down one would in no way involve the" walls of the other. In Earl v. Beadleston, 42 Supr. Ct., 294, it was held in the case of a party wall which the adjoining owners were bound to keep up that one of then could not maintain an action against the other who had employed a contractor to take down his house which involved the removal of the beams resting in the party wall, for it was said that this could be done without necessarily weakening the wall.

In this case appellant and one witness in his behalf testified that when the rear part of the wall on No. 19 was torn down it exposed the whole of one side of the extension before mentioned and that there was no other protection to that part of his premises than the wall so tom down.

This is denied both by the respondent and Mr. Tripler, who testify that both buildings had independent walls except along a part of the extension, and there the wall torn down was wholly on lot No. 19, and Mr. Tripler testified that the extension in question next the wall torn down was protected by a lath and plaster partition left standing when the other wall was removed, and that there was no opening except one place near the ceiling, which was closed with board in a short time. It is apparent from the testimony that the extension must have had some kind of support next to No. 19, to permit these boards to be fastened upon it, and to support the roof, which remained intact.

On this state of facts, the justice who tried the case rendered his decision in favor of the respondent, and must have found that the work contracted to be done would not necessarily injure the appellant. While the evidence is conflicting, we think there was. quite enough given by the respondent to justify the conclusion arrived at. We are satisfied from the evidence that no injury to appellant nor invasion of his premises were contemplated hy respondent when he made the contract, and that none were necessarily involved in doing the work under it.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Leopold Wise and Charles Wise, App’lts, v. William Rosenblatt, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed January 5, 1891.)

    Factors—Contract—Evidence.
    Defendant consigned goods to plaintiffs for sale, and received advances thereon, for which he gave a receipt, which also stated that the goods were to he sold at plaintiffs’ discretion, without limit as to time or price. This was signed only by • defendant, and no writing was given by plaintiffs. In an action for a deficit on the sale, Held, that the receipt being signed only by defendant, could not be considei ed the agreement between the parties, but only evidence of what defendant undertook to do, and that he was not precluded from showing that plaintiffs agreed that if the goods failed to bring a certain price they would be answerable for the difference; that such evidence was not in conflict with defendant’s engagement, and tended to prove the terms of the engagement on the part of the plaintiffs, which' had not been reduced to writing.
    Appeal from a judgment in the eleventh district court in favor of the defendant, dismissing the complaint and for the amount of the counterclaim, rendered in an action to recover an 'alleged balance of advances made upon a consignment of merchandise.

      John J. Thomasson, for app’lts; Henry Steinert, for resp’t.
   Bischoff, J.

The facts of this case, so far as they are apparent from the record before us, are briefly stated as follows: Plaintiffs were auctioneers and commission merchants in the city of ISTew York under the firm name of L. & 0. Wise. About March 20, 1889, the defendant consigned to the plaintiffs 825 pairs of shoes for sale, upon which plaintiffs agreed to make advances. These advances appear to have been made in three instalments amounting in the aggregate to $655. Por each of these instalments the defendant, at the request of plaintiffs, signed and delivered a receipt in the following words:

March 20, 1889.

“ Received of L. & 0. Wise-dollars, advance invoice of March 20, 1889, on account of all goods consigned to them. The same to be sold at their discretion without limit as to time or price.

“ $-. (Signed.) “ Wm. Rosenblatt.”

Plaintiffs, having disposed of the merchandise consigned, claimed that after deducting ten per cent, the amount of their agreed commissions, the balance of the proceeds of sale were short of the advances made $48.72, and for the recovery of this balance of advances this action was brought. On the trial the facts above stated do not appear to have been controverted, but the- defendant insisted that at the time of the agreement for the consignment of the merchandise by the' defendant to the plaintiffs, the latter, as part and parcel of such agreement, had entered into a guarantee with the defendant that the shoes would on a sale realize not less than $1.25 per pair, and the principal contention on the trial was to the admissibility of the oral testimony introduced by the defendant, and allowed by the trial justice against the objection and exception of plaintiffs counsel, tending to establish thé fact of the alleged guarantee.

If this oral testimony was properly admitted "it sufficiently established the guarantee, and the trial justice being authorized to determine the facts, no jury trial having been demanded, it was competent for him to accept the testimony of defendant's witnesses, and upon a mere conflict of testimony in that respect the appellate court will not interfere.

Upon the first appeal herein, 9 N. Y. Supp., 500; 30 N. Y. State Rep., 858, it appeared that the justice in the court below had rendered a judgment in favor of defendant without allowing him for the counterclaim demanded, and which did not appear to have been withdrawn. There was an apparent inconsistency in this. On the uncontroverted proof, in support of their claim for the balance of the advances made, the plaintiffs were entitled to judgment, unless the defendant had shown himself entitled to the amount of his counterclaim. And as the justice had not determined the counterclaim in defendant’s favor, he could not fail to award judgment to the plaintiffs for the amount which, but for the counterclaim, so far as could be ascertained from the record of the appeal, was concededly due. To obviate this inconsistency, the judgment was reversed, and a new trial ordered. The parties thereupon again appeared in the court below, and for the, purposes of a re-trial, submitted the evidence taken upon the former trial to the justice for his determination. Upon this second trial the justice found for the defendant for the full amount of his counterclaim, and we are thus for the first time enabled fairly to consider the sufficiency of the evidence in support of the judgment. It is contended by counsel for the appellants that the receipts signed and delivered by the defendant at the time of the advances to him, in so far as they are expressive of the terms upon which the consignment was made, are not open to contradiction by paroi evidence, and for the purposes of this appeal as an abstract proposition of law this contention may be conceded to be well founded. But the defendant is not precluded because of these receipts from showing the terms of the plaintiffs’ agreement, and the nature and extent of their undertaking. These receipts being subscribed by the defendant only, cannot be said to constitute the agreement between the parties to this action. They are unquestionably evidence of what the defendant agreed to do, but they fail to show what the plaintiffs undertook to do in consideration of the defendant’s promise.

A mere unilateral engagement is not a contract. “A. agrees to work for B. for wages. What A. says is a promise so far as concerns himself, and a consideration so far as concerns B.; what B. says is & promise so far as' concerns himself and a consideration so far as cancers A.” Wharton on Contracts, § 493.

In just such a case as the one at bar the court of appeals, in considering the question whether or not a memorandum subscribed by only one of the parties to the agreement can be said to constitute the sole evidence of the contract, to the exclusion of paroi evidence of what the engagement of the party not signing was, says: “We think the instrument cannot be so construed. It acknowledges an order for certain articles, a period of' delivery and a price. It is an admission of these things by the party signing it, and not at all the contract of both; a mere memorandum to show what had been ordered, that one party might know what they were to supply and the other what they were to receive, and so avoid a double order. • * * * But even an agreement may be valid although only a part is in writing, and while as to that part the writing is conclusive, paroi evidence may be used to show the rest. Chapin v. Dobson, 78 N. Y., 74. We think, therefore, no error was committed by the trial court in receiving the paroi testimony, and under it and the verdict of the jury an express warranty as to the quality of the goods agreed to be furnished must be deemed established.” Brigg v. Hilton, 99 N. Y., 517.

And in Routledge et al. v. Worthington Co., 119 N. Y., 592; 30 N. Y. State Rep., 195, Gray, J., in the consideration of the same question, says: “In respect to this particular transaction, it was perfectly competent for the defendant to prove a separate and distinct undertaking of the plaintiffs with it, that they would not affect its trade by reducing the trade price. * * * The cases of Chapin v. Dobson, 78 N. Y., 74; Van Brunt v. Day, 81 id., 251, and Brigg v. Hilton, 99 id., 5l7, fully sustain the proposition that in such a case as this, where the agreement of the plaintiff rested in paroi, it is open to proof. The rule which rejects paroi evidence when offered with respect to a contract between parties and put into writing, has no application to a case like this, where, of the original agreement which has been executed, a part only is in writing and the rest was verbal. The principle of liability is the same, whether the whole transaction be embodied in one written, instrument, setting forth the respective obligations of both parties, or whether it takes the form of a separate undertaking by each party. Whether we regard the writing of the defendant as an order, or as an agreement, is quite immaterial. In either view it was an admission only of the defendant’s engagement.” The point raised by the appellant’s counsel on the appeal in this case is also fully considered in the case of Curtis v. Soltau, 34 N.Y.St.Rep., 767, decided by the general term of this court for November, 1890, the opinion in which is about to be announced. The last mentioned opinion is also to the effect that paroi evidence of the engagement of the party not subscribing the memorandum is admissible. It follows that while the defendant could not have been permitted to contradict or vary the terms of his own engagement, so far as they have been reduced to writing an,d subscribed by him, he is not precluded from showing by paroi what the plaintiffs promised to do in consideration of his engagement, and. inasmuch as it does not appear that the plaintiffs’ engagement was also reduced to writing and properly subscribed, it necessarily follows that resort must be had to paroi evidence to ascertain the terms of the agreement on plaintiffs’ behalf. The guarantee claimed by the defendant to have been made by the plaintiffs was substantially: “ If these goods, upon a sale thereof, fail to realize $1.25 per pair, we will be answerable to you for the difference between that amount and the price obtained.”

This is not in conflict with the defendant’s engagement that plaintiffs may sell the shoes without limit as to price, and the promise of the plaintiffs to be answerable to the defendant for the difference between the amount actually realized on a sale and .$1.25 per pair, may in all probability have been made with a view •of inducing the defendant to entrust the plaintiffs with the sale, the plaintiffs entertaining, for the time being, the opinion that the goods would not upon a sale realize less than the amount stated.

For the reasons above stated, we cannot predicate any error on the part of the trial justice in allowing paroi evidence to be given on defendant’s behalf of the plaintiffs’ guarantee.

The judgment should be affirmed, with costs.

Bookstayer, J., concurs.


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    Court of Appeals.
    Filed December 2, 1890.
    Wm. Sperb, Jr., Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.

      Edwin M. Felt, for resp’t; Brainerd Tolies, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 934.


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    The People ex rel. Theo. Balke, Resp’t, v. Stephen B. French et al., Com’rs, etc., App’lts.

      Louis J. Or ant, for resp’t; I). J. Bean, for app’lts.
   Appeal dismissed, with costs, on authority of People v. Fire Com’rs, 106 N. Y., 257; 8 N. Y. State Rep., 695. All concur, except Huger, Ch. J., dissenting.

See 32 N. Y. State Rep., 557.


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    The People ex rel. Richard W. G. Welling, Resp’t v. Alex. Meakim, Com’r, etc., App’lt.

      Lewis L. Belafield, for resp’t; Edward Browne, for app’lt.
   Judgment affirmed, with costs. All concur, except Ruger, Ch. J., and Andrews, J., not voting.

Affirming 31 N. Y. State Rep., 928.


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      In re Petition Wm. Van Tassell, Taxpayer, etc., Resp’t, v. John Derrenbacher, County Treasurer, App’lt.

      Augustus R.Yan Burén, for resp’t; A. T. Clearwater, for app’lt.
   Order affirmed on opinion below, with costs. All concur.

Affirming 31 N. Y. State Rep., 312.


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    George H. Case, App’lt, v. Wm. F. Mannis et al., Resp’ts.

      L. R. Worthup, for app’lt; R. 0. Bascom, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 44.


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    Phebe A. Smith, App’lt, v. John MacArthur, Resp’t.

      Benj. W. Downing, for app’lt; Chas J. Patterson, for resp’t.
   Judgment affirmed, with costs. All concur. „

Affirming 24 N. Y. State Rep., 711.


text:
    Clara Campbell, Resp’t, v. Chas. Arbuckle, App’lt.

      C. E. Rushmore, for resp’t; Jno. E. Parsons, for app’lt.
   ■ Judgment affirmed, with costs. All concur, except Andrews, Peckham and Gray, JJ., who dissent.

Affirming 21 N. Y. State Rep., 412.


text:
    The Northampton Nat. Bank, Resp’t, v. W. Gill Wylie, Impl’d, App’lt.

      E. W. Tyler, for resp’t; Qeo. R. Adams, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 26 N. Y. State Rep., 286.


text:
    John A. Kamping, App’lt, v. John A. Horan, Resp’t.

      John A. Kamping, for app’lt, R. J. Moses, for resp’t.
   Order affirmed and judgment absolute ordered on the stipulation for the defendant, with costs. All concur:

Affirming 21 N. Y. State Rep., 418.


text:
    Tyler McNaier, Resp’t, v. The Manhattan R’way Co., App’lt.

      Joseph 8. Wood, for resp’t; Brainerd Tolies, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 22 N. Y. State Rep., 840.


text:
    Albert L. Hanscom, Resp’t, v. Mortimer Hendricks, App’lt.

      Chas. E. Hughes, for resp’t; Abram ICling, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 22 N. Y. State Rep., 585.


text:
    Jas. Bigler, Resp’t, v. The N. Y. & Brooklyn Ferry & Nav. Co., App’lt.

      M. H. Hirseliberg, for resp’t; Michael H. Cardoso, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 603.


text:
    Edgar Underhill et al., Resp’ts, v. Geo. E. Ramsey, App’lt

      Cary & Bumsey, for resp’ts; Alex. Cummings, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 18 N. Y. State Rep., 717.


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    Joseph Barrett et al., App’lts, v. John B. Weber, Surv’g Partner, Respt.

      Geo. C. Greene, for app’lts; Geo. Wadssoovth, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 3.


text:
    J. Warren Merchant, Resp’t, v. Conrad N. Jordan, App’lt.

      D. 8. Biehards, for resp’t; W. J. Groo, for app’lt.
   Judgment affirmed. All concur.

Affirming 25 N. Y. State Rep., 268.


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    Geo. F. Fitzpatrick, Resp’t, v. The N. Y. & Manhattan Beach R. Co., App’lt.

      F. B. Coudert, for resp’t; Wm. J. Kelly, for app’lt.
   Judgment affirmed. All concur.

Affirming 24 N. Y. State Rep., 636.


text:
    John B. Gale, App’lt, v. The Fitchburg R. R. Co., Resp’t.

      John B. Gale and Alden & King, for app’lt; John H. Peak, for resp’t.
   Judgment of general term reversed, and judgment of trial term affirmed, with costs. All concur, except Ruger, Oh. J., Earl and Finch, JJ., dissenting.

Reversing 19 N. Y. State Rep., 934.


text:
    Filed December 9, 1890.
    The Canajoharie Nat. Bank, Resp’t, v. John F. Diefendorf, App’lt.
   No papers.

Motion for re-argument denied, with ten dollars costs. All concur.

See 33 N. Y. State Rep., 389.


text:
    Fred. H. Smith, App’lt, v. The Nat. Benefit Society of the City of New York, Resp’t.

      J. A. Shoudy, for app’lt; A. J. Perry, for resp’t.
   Motion for re-argument denied, with ten dollars costs. All concur.

See 33 N. Y. State Rep., 67.


text:
    James C. Aikin et al., Resp’ts, v. Robert E. Westcott, as President, etc., App’lt.

      Abbott Bros., for resp’ts; Austen G. Fox, for app’lt.
   Motion for re-arument denied, without costs. All concur,

jRemittitur amended as per order filed with clerk.

See 33 N. Y. State Rep., 623.


text:
    Samuel N. Bacon, Resp’t, v. The U. S. Mutual Accident Society, App’lt.

      8tedman, Thompson & Andrews, for resp’t; Biehard L. Hand, for app’lt.
   Motion for re-argument denied, with ten dollars costs. All concur.

See 33 N. Y. State Rep., 591.


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    The People ex rel. John H. Campbell, Resp’t, v. Edward Hannan et al., App’lts.

      Orin Gambell, for resp’t; B. A. Parmenter, for app’lts.
   Order affirmed, on opinion of general term below, with costs. All concur, except Roger, Ch. J., not voting.

Affirming 31 N. Y. State Rep., 603.


text:
    Filed December 16, 1890.
    The People ex rel. Orson T. Cook, Resp’t, v. Samuel W. Smith, as Constable, App’lt.

      David M. Salisbury, for resp’t; W. P. L. Stafford, dist. att’y, for app’lt.
   Order of general term affirmed, with costs. All concur.

Affirming 28 N. Y. State Rep., 306.


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    The People ex rel. George W. Mason, Jr., App’lt, v. Almet F. Jenks, as Corporation Counsel, Resp’t.

      Alex. McKinny, for app’lt; Wm. T. Gilbert, for resp’t.
   Order of general term affirmed, with costs. All concur.


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    The Equitable Life Ass. Soc’y U. S., App’lt, v. Robert M. Olyphant, Resp’t.

      Geo. Waddington, for app’lt; Wm. L. Snyder, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 704.


text:
    Huldah H. Clapp v. Robert C. Clapp et al.

      W. H. Peehham, for app’lt; Geo. O. Holt, for resp’ts.
   Order affirmed on opinion of general term below, with costs. All concur.

Affirming 27 N. Y. State Rep., 180.


text:
    In the Matter of the Petition of Margaret Gibbons to Vacate an Assessment, etc.

      Jas. A. Peering, for app’lt; D. J. Dean, for resp’t.
   Order of general term affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 207.


text:
    Manley W. Morey et al., Resp’ts, v. Chas. F. Walker and Joseph C. White, App’lts.

      Henry A. Merritt, for resp’ts; Frank S. Black, for app’lts.
   Appeal dismissed, with costs. All concur.

See 31 N. Y. State Rep., 1002.


text:
    Manley W. Morey et al., Resp’ts, v. Chas. F. Walker and Edward M. Walker, App’lts.

      Henry A. Merritt, for resp’ts; Pmnk S. Black, for app’lts.
   Appeal dismissed, with costs. All concur.

See 31 N. Y. State Rep., 1002.


text:
    Caroline Livingston, Resp’t, v. The N. Y. El. R. R. Co. et al., App’lts.

      8. B. Livingston, for resp’t; Brainerd Tolies, for app’lts.
   Order of general term affirmed, with costs. All concur.

Affirming 33 N. Y. State Rep., 818.


text:
    The Marine Bk. of Buffalo, Resp’t, v. The Butler Colliery Co., App’lt.

      Sherman S. Bogers, for resp’t; E. Countryman, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 318.


text:
    George L. Pease, Resp’t, v. Aaron Field et al., App’lts.

      James L Bishop, for resp’t; Carlisle Norwood, Jr., for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 504.


text:
    George E. Tucker, Resp’t, v. Emory W. Abbott, Impl’d, etc., App’lt.

      C. H, Walts, for resp’t; V. P. Abbott, for app’lt.
   Order of general term affirmed, and judgment absolute on stipulation ordered for plaintiff, with costs. All concur, except Earl, J., not voting.

Affirming 16 N. Y. State Rep., 344.


text:
    Samuel P. Hyman, et al., App’lts, v. Rebecca Kapp, as Admrx., etc., et al., Resp’ts.

      Blumenstiel <6 Birsch, for app’lts; B. F. Einstein, for resp’ts.
   J udgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 1034.


text:
    The Household Sewing Machine Co., App’lt, v. Mary Ellen Vaughan et al., Resp’ts.

      Edward F. Wellington, for app’lt; Parker & Brake, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 17 N. Y. State Rep., 333.


text:
    John M. Anderson, Resp’t, v. The N. Y., L. E. & W. R. R. Co., App’lt.

      O. B. Bust, for resp’t; Wm. W. MacFarland, for app’lt.
   Judgment affirmed, with costs. Ruger, Oh. J., Andrews, Finch and Gray, JJ., concur; Earl, Peckham and O’Brien, Jj., dissent.

Affirming 25 N. Y. State Rep., 158.


text:
    Jean Hirsch, Resp’t, v. The N. Y. & Greenwood Lake R. R. Co., App’lt.

      J. Edward Swanstrom, for resp’t; Wm. W. MacFarland, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 156.


text:
    Charles F. Johnson, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

      J. Edward Swanstrom, for resp’t; Samuel B. Clarke, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 H. Y. State Rep., 162.


text:
    The Importers & Traders’ Nat. Bank of N. Y., Resp’t, v. Henry S. Berger et al., App’lts.

      3. A. Kingsbury, for resp’t; Wm. W. MacFarland, for app’lts.
   Judgment affirmed, with costs. All concur, except Gray, J., not sitting.

' Affirming 25 N. Y. State Rep., 136.


text:
    John Buhrens, Resp’t, v. The Dry Dock, East Broadway & Battery R. R. Co., App’lt.

      Wm. 3. Townley, for resp’t; John M. Scribner, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 191.


text:
    Harriet Fifield, Resp’t, v. The N. Y., Lackawanna & W. R. R. Co., App’lt.

      Seward A. Simons, for resp’t; John G. Milburn, for app’lt.
   Judgment reversed and new trial-granted, costs to abide event, on opinion of Earl, J., in Miller v. N. Y., L. & W. R. R. Co., 34 N. Y. State Rep., 607. All concur, except Peckham, J., not sitting.


text:
    Filed December 19, 1890.
    Henry C. Briggs, App’lt, v. The Weidmann Cooperage Co., Resp’t.

      Sector M. Bitchings, for app’lt; Samuel T. Maddox, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 300.


text:
    William Walsh and John Hickey, Resp’ts, v. Mary E. McCloskey, App’lt.

      Patrick Keady, for resp’ts; Gerard B. Van Wart, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 932.


text:
    Caroline C. Piper, Resp’t, v. John L. Hoard, App’lt.

      A M. Beardsley, for resp’t; O. B. Adams, for app’lt.
   Judgment affirmed, with costs. All concur, except Ruger, Ch, J., dissenting. „ „„„

Affirming 19 N. Y. State Rep., 303.


text:
    Stephen A. Perkins, App’lt, v. George D. Eighmie, Resp’t.

      Homer A. Nelson, for app’lt; Frank B. Lown, for resp’t.
   Judgment affirmed, with, costs. All concur.

Affirming 24 N. Y. State Rep., 728.


text:
    John D. Ottiwell, Resp’t, v. Jane B. Muxlow et al., App’lts.

      Arthur Hurst, for resp’t"; Wilder, Wilder & Lynch, for app'lts.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 38.


text:
    James E. Hamel, Resp’t, v. The Brooklyn & N. Y. Ferry Co., App’lt.

      A. W. Gleason, for resp’t; Jamies Troy, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 153.


text:
    Henry Lissa et al., App’lts, v. Emil Goodkind et al., Resp’ts.

      Gibson Patzel, for app’lts; Sol. Kohn, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 353.


text:
    Francis A. Jewett, App’lt, v. Simeon Brownell, Resp’t.

      F. W. Betts, for app’lt; Westfall & Whitcomb, for resp’t.
   Judgment affirmed, with cost-i, on opinion of general term below. All concur.

Affirming 22 N. Y. State Rep., 410.


text:
    Edwin A. Bradley et al., Resp’ts, v. Miles A. Stafford, App’lt.

      A. Prentice, for resp’ts; S. V. B. Cooper, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 16 N. Y. State Rep., 1007.