author: O’Brien, J.

text:
    Ellen Demings, Resp’t, v. The Supreme Lodge Knights of Pythias of the World, App’lt.

      (Court of Appeals,

      Filed March 22, 1892.)

    Benefit societies—Authority for making assessment—Evidence.
    By the rules of defendant, if after the payment of a life benefit there was not enough in the fund of that class to pay the next benefit, the supreme secretary was authorized to notify the secretary of each section to assess each member $1.10, payable within thirty days. On the trial of an action upon a benefit certificate, which defendant refused to pay on the ground of non-payment of assessments, defendant’s counsel .offered to prove the receipt by the section secretary of such notices from the supreme secretary, and that the former notified the insured, who failed to pay within the prescribed time and was suspended. This evidence was rejected on the ground that it was not shown that the assessment was regularly made. Held., error; the notice from the supreme secretary was presumptive proof that there was not a sufficient sum in the fund to pay another benefit and that an assessment was necessary.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered on ver: diet of jury at circuit.

      Charles B. Wheeler, for app’lt; Samuel M. Welch, Jr., for resp’t.

       Reversing 38 St. Rep., 379.

   O’Brien, J.

The defendant is incorporated in the District of Columbia, and one of the objects of its incorporation, among other things, is the mutual insurance of the lives of its members. On or about the 5th day of May, 1881, the proper officers of the defendant delivered to one George Demings a certificate in writing under the corporate seal of defendant, in which it is stated “ that brother G-eorge Derriings has received the endowment rank of the order of Knights of Pythias in section No. 491, and is a member in good standing in said rank. And in consideration of the representations and declarations made in his application, bearing date April 4, 1881, which application is made a part of this contract, and the payment of the prescribed admission fee; and in consideration of the payment hereafter to said endowment rank of all assessments required, and the full compliance with .all the laws governing this rank, now in force, or that may hereafter be enacted, and shall be in good standing under said laws, the sum of one thousand dollars will be paid by the Supreme Lodge Knights of Pythias of the World, to Ellen Demings, as directed by said brother in his application, or to such other person or persons as he may subsequently direct by will or otherwise and entered upon the records of the supreme master of exchequer, upon due notice and proof of death and good standing in the rank at the time of death, and the surrender of this certificate, provided, however, that if at the time of death of said brother there shall be less than on.e thousand members in this class there shall be only paid a sum equal to one dollar for each member in good standing in this class. And it is understood and agreed that any violation of the within mentioned conditions or the requirements of the laws governing this rank shall render this certificate and all claims null and void, and that the said Supreme Lodge shall not be liable for the above sum or any part thereof.”

The insured member died on the 5th of February, 1885, and the plaintiff, who is the beneficiary named in the certificate, brought this action to recover the sum stipulated to be paid in the certificate in case of death. One of the regulations or by-laws of the corporation which became a part of the contract provided that upon receiving notice of an assessment, each member shall at once pay the amount to the secretary of the section to which he belongs. If any neglect, for thirty days after notice, to pay said assessment, he shall stand suspended from that class of the endowment rank for which said assessment was made, and shall forfeit all claims upon the endowment, fund belonging to that class, and the fact of such suspension shall be reported to the supreme secretary upon the remittance blank, provided that any member thus suspended shall have the privilege of regaining his right irx said class within three months by passing a new medical examination, and paying all assessments that may have accrued up to the time of reinstatement.” It was alleged in the answer that on or about November 22, 1884, an assessment was duly made in pursuance of the laws, covering said endowment rank upon each' member thereof and upon said George Lemings among others, and that on the same day due and proper notice of such assessment was given to and received by said George Lemings pursuant to said by-laws together with a notice that a failure to pay said assessment by Lecember, 1884, would forfeit membership and all claims upon the endowment fund - belonging to said ■ class. That notwithstanding said ass essment and notice thereof, the said George Lemings neglected and refused to pay said assessment at all, and for failure to pay the assessment as required, after thirty days he was duly suspended from said class of the endowment rank, and forfeited all claims upon the endowment fund belonging to said class as provided in and by said contract and by-laws.

On the trial the defendant’s counsel offered to prove by the secretary of the section that he received from the - supreme secretary of the supreme lodge notices of assessments for mailing, that he duly notified George Lemings of the levying of the assessments 66 and 67 and that' Lemings received the notices of assessment and failed during thirty days thereafter to pay the same. That upon being called upon afterwards by the secretary personally and requested to pay he notified the secretary that he intended to pay no more assessments, and stated to the secretary that the lodge should suspend, and accordingly after the expiration of ■ thirty days the fact was reported to branch 491, and he was declared suspended for non-payment of his dues, and that fact was reported by the secretary to the supreme lodge, and that he has never since paid any of his dues or assessments. These were the assessments referred to in the answer. The plaintiff’s counsel objected to this evidence upon the ground that the defendant had not yet shown that any such assessment was regularly made according to the laws of the order. The court sustained the objection, excluded the proof upon the ground stated, and the defendant's counsel excepted.

According to the laws of the corporation assessments originate in the following manner: “If after paying a benefit there remain in the fund belonging to the class of which the deceased was a member a less sum than is sufficient to pay a benefit to that class, the supreme secretary shall immediately notify the secretary of each section to collect and forward to him an assessment of one dollar and ten cents from each member of said class; which must be paid within thirty days.” Therefore, whenever after the payment of a benefit the fund becomes depleted so that' there is not enough to pay another benefit the corporate by-laws, which were made part of the contract in question, provided for an assessment Neither the amount nor the time of payment was uncertain or subject to the discretion of the secretary. The only fact that he had to determine was whether there was on hand in the proper fund sufficient to pay another benefit, and if there was not, it then became his duty to send the notices of the assessment to the secretary of each section for service upon the members. The notice from, the supreme secretary, whose duty it was to ascertain whether there was sufficient in the fund to pay another benefit, was presumptive proof that there was not and that the assessment was necessary. Acts done by a corporation which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Bank of the U. S. v. Dandridge, 12 Wheat., 79; Pringle v. Woolworth, 90 N. Y., 510.

We are, therefore, of the opinion that the learned trial judge erroneously excluded the evidence offered to show that the deceased refused to pay the assessment when notified.

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

All concur. • .


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Clarence R. Conger, App’lt, v. John Treadway, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    Cemetebies—Advebse possession.
    A cemetery was owned by eleven tenants in common. In 1854 a power of attorney was given by eight of them to G-. to sell and convey the lots, which he acted under, and after his death B., his son-in-law, acted as attorney for, and with the knowledge of the owners for several years and until his death. He collected money and paid the liabilities of the owners, kept a book of sales, etc., on which appeared a memorandum of a sale to defendant of the lot, and a credit of part payment. Defendant had more than twenty years before buried bis daughter in the lot and afterwards his wife and .five of his grandchildren, and he cared for it every year. Held, that defendant had title by adverse possession sufficient to defeat an action, of ejectment.

      Appeal from a judgment of the general term, second depart; inent, affirming a judgment entered on a verdict directed by the court.

      Irving Brown, for app’lt; .George W. Weiant, for resp’t.
   Haight, J.

This action is in ejectment to recover a plot of ground known as Lot No. 192 of Mount Eepose Cemetery in Haverstraw, N. Y.

The cemetery was formerly owned by eleven persons as tenants in common. In the month of April, 1854, a power of attorney was executed by eight of the tenants in common to John S. Gurnee and Isaiah Milburn, to grant, bargain and sell the premises in question for such sums or prices as to them shall seem meet, and. to execute, acknowledge and deliver good and sufficient deeds and conveyances for the same. Daniel E. Weed, one of the owners, did not join in this power of attorney, and it appears that Isaiah Milburn, one of the attorneys so appointed, took no active part therein. Gurnee undertook the execution of the power and continued to sell lots as long as he was physically able to attend to .the matter, and thereafter and after his death E. T. Blanche, his son-in-law, acted as the attorney and controller of the owners for the space of about eight years and until his death.

The plaintiff claims to be the owner by reason of a purchase under a sale made in an action to partition among the original owners or- their heirs or devisees."

Upon the trial the defendant was permitted to testify that he purchased the lot in question of Gurnee, agreeing to pay therefor the sum of $72.50; that he entered into possession and buried his daughter therein more than twenty years before this action was brought, and has since, buried his wife and five grandchildren therein. ’

Inasmuch as" Gurnee was one of the tenants in common and at the time this action was tried was deceased," there may be some question as to the right of the defendant to testify to the personal transaction he claims to have had with him. We shall, therefore, for the purposes of this action disregard that evidence and from that which remains determine whether the trial court properly directed a verdict.

It is contended that Blanche had no authority to act for the . owners in selling burial lots, but it appears that he did so act for a number of years with their knowledge; that he collected money , and paid the liabilities of the owners; kept a book in which the sales of lots were entered, with the amount paid, etc. These facts fully appear from the testimony of McKenzie, the secretary of the association, and from the widow of Blanche. On the book kept by Blanche of the sale of the burial lots there appears the following entry:

“April 22, 67, John Treadway, 192... 21 x 23... 483... $72.50.”

From which we understand that on April 22, 1867, he sold, the defendant Lot No. 192, being twenty-one feet by twenty-three feet, amounting tp four hundred and eighty-three square feet, for $72.50. On-November 1, 1869, the defendant paid Blanche $30.47 as part payment for Lot No. 192 and took his receipt therefor, and-at the same time agreed to pay the balance of the purchase money upon the production ana delivery of a deed thereof. No deed has ever been tendered him or demand made for the balance of the purchase money.

■ Under these facts the trial court directed a verdict for the defendant, and we think properly.

It is evident from the facts that Blanche acted as the attorney of the owners with their knowledge and consent. The land, as we have seen, was devoted by its owners to burial purposes. It was not convenient or practicable for them all to act in the sale of lots, and so it was thought advisable to appoint some one to act for them. And whilst-there is a failure to show express authority for Blanche to sell, still-we think under the evidence the inference of necessity exists that they had given him such authority. It follows that the defendant is rightfully in possession. If, as is. claimed, his contract of purchase is still executory, then under the agreement he was entitled to the possession until the production and delivery to him of a deed of the premises. The failure of the owners to tender a deed has not put the defendant in default. As we have seen, the lot was more than twenty years ago occupied by the defendant for the burial of his dead. On it rest his daughter, his'wife and five of his grandchildren. The lot was improved, graded, sodded, and every year he has caused flowers to be planted ther.eon. His possession has been as exclusive as the nature of the circumstances would permit for upwards of twenty years. He entered under a claim of title through purchase, and if his contract were not executory his title by adverse possession would be complete.

The judgment should consequently be affirmed.

Judgment "affirmed, with costs.

All concur, except Brown, J., not sitting.

       Affirming 28 St. Rep., 745.


author: Parker, J. Bradley, J.

text:
    The Chemical National Bank of New York, Resp’t, v. Augustus W. Colwell, Imp’ld, App’lt.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    Business corporations—Liability oe director—Failure to file annual report^Resignation of director.
    As soon as a director parts with all'beneficial interest in, and control over the stock which he is required to hold under the statute, and causes the officers of the corporation to have knowledge of such fact by a request that a proper transfer be made on the books of the company, he no longer possesses the qualifications which the statute declares to be essental, and he is divested of the title to the office which he has ceased to be qualified to hold.
    "(Bradley, J., dissents.)

      Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, entered on an order affirming a judgment of the trial term of that court in favor of the plaintiff.

      Edward C. Perkins, for app’lt; Charles Jones, for resp’t.

       Reversing 29 St. Rep., 720.

   Parker, J.

The debt which lies at the foundation of the judgment under review is alleged by the plaintiff to have been incurred by the “New York Lumber Auction Company, Limited,” a corporation organized pursuant to chapter 611 of the Laws of 1875. The corporation has no money with which to pay the obligation and the assertion of defendant’s liability to respond therefor is based on the default of the corporation in making the annual report required by statute.

The defendant’s denial of liability is placed on three grounds:

1. That the note having been made by the corporation payable to its own order, the plaintiff by discounting it for the personal benefit of Jones, a director and secretary and treasurer of the company, became burdened with the necessity of proving that the note was issued for the benefit of the corporation making it, which it failed to do.

2. That the defendant resigned as director November 5, 1885, and before the arrival of .the time for making the annual report in respect to which default was made.

3. That before the time came to make the report the defendant had ceased to be a stockholder, and, therefore, by operation of the statute had ceased to be a director.

As we have reached the conclusion that the last position is well taken, and calls for a reversal of the judgment, the other questions will not be considered.

The corporation was created in July, 1885; the annual report omitted should have been made within twenty days after the 1st day of January, 1886, and the note in suit bears date July 2, 1886. The defendant was one, of the subscribers to the capital • stock of the company, and was elected a director. Subesquently he informed Jones, the secretary and treasurer of the corporation, that he wished to resign all connection with the company, assigning as a reason the duties imposed by the executorship of his father’s estate.

After several conversations of the same general character, and on November 5, 1885, he, accompanied by his co-executor, Mr. Milne, went to the office of the company and met Jones, the secretary and treasurer, and a Mr. Atchinson, an employee. The defendant asked for his stock and received a certificate for eighty shares, which he endorsed as follows:

“ For value received I hereby sell, transfer and assign to Latimer E. Jones eighty shares of stock within mentioned, and authorize L. E. Jones to make the necessary transfer on the books of the company.
“ Witness my hand and seal this 5th day of November, 1885.
“A. W. Colwell.
“ In presence of
“T. S. Atchinson.”

After executing this assignment he gave the stock certificate to Jones, at the same time saying: “Now, Jones, that severs all my connection with the Lumber Auction Company; I have got nothing further to do with it; you have got father’s stock, he is dead, and that settles that, and I have given you mine, and that clears up all that, and Í have nothing further to do with the company.”

Jones accepted the stock, and the defendant asked for the transfer book, but the company did not have one, and he was told that it'wasnot necessary. Some days later a transfer book was obtained, and the stock transferred, but as Jones, at the suggestion of Atchinson, issued a new certificate to himself for seventy-five shares, and to the defendant, but without his knowledge, for the remaining five shares, and a few days later induced him to accept it, but not with the understanding that he should be a director, we are led to inquire whether the defendant did not cease to be a stockholder on the 5th of November.

The importance of that inquiry rests in the requirement of the statute that the directors “ at their election, and throughout their term of office, shall be stockholders in such corporation to at least the extent of five shares." If then defendant ceased to be a stockholder in the corporation on November 5th, the statute put an end to his official relation with the company. It should be observed that on the occasion o.f the assignment of the stock to Jones, and his acceptance thereof, it was understood to be an absolute disposition of all of the defendant’s shares. The subsequent issue of five shares to him was not in pursuance of any understanding had at the time of such assignment, and was done at the instance of Atchinson, who made out the certificate, and suggested to Jones that he persuade Colwell to accept it

The consideration of the úndisputed testimony to which we have referred is not embarrassed by any question as to the good faith of the defendant or the propriety of his action. The corporation was solvent when he sought to terminate his relation with it as a stockholder and director, and the indebtedness which induces this controversy was created months afterwards. That he intended to make an effectual transfer of his stock is not questioned ; nor is it asserted that he omitted to do anything which the situation permitted to effectuate his purpose. The contention is that he did not accomplish his desire because the transfer was not made on the books of tire company that day.

He sought to have that done, but it was not, because the company had failed to provide books for the purpose, as provided by its by-laws. It has been frequently held that such provisions are intended solely for the protection of the corporation; can be waived or asserted at its pleasure; are without effect, except for the protection of the corporation, and do not operate to prevent the passing of the entire title, legal and equitable, in the shares, .as between the parties, by the delivery of the certificate, with .assignment and power of transfer. Isham v. Buckingham, 49 N. Y., 216; Robinson v. National Bank of New Berne, 95 id., 637; McNeil v. Tenth National Bank, 46 id., 331; Leitch v. Wells, 48 id., 585.

The plaintiff's contention, then, is reduced to the position that notwithstanding the defendant parted with all title, both legal and •equitable, in the shares, he still continued to be a stockholder, within the meaning of the statute, because through the neglect of •the corporation in providing proper transfer books the stock was mot formally transferred on its books.

We do not think the statute should receive such a construction. ’The requirement that a director should have* at his election, and throughout his term of office, at least five shares, manifests that it was the policy of the legislature that the management of the ■affairs of such corporations should only be committed to those having a personal pecuniary interest in its success or failure in the conduct of the business for which it was created; otherwise the provision is without reason for its support.

It would seem to follow that as soon as a director parts with all beneficial interest in and control over the stock which he is required to hold, and causes the officers of. the corporation to have knowledge of such fact by a request that a proper transfer be made on the books of the company, he no longer possesses the qualifications which the statute declares to be essential..

If the defendant had not been elected a director at the first «election, and had simply subscribed for eighty shares of stock, it would hardly be contended that after making the disposition of it which he did on November 5th, that he would have been «eligible to the position of director; nor would there have been any excuse for assuming that he was, for even the books of the company did not show an apparent eligibility, there were no transfer books, and the only evidence there was on that subject in the possession of the company showed that the defendant had parted with all interest in and dominion over the stock for which he had subscribed.

For the same reason the statute executing itself operated to divest him of title to the office which he had ceased to be qualified to hold.

In the cases cited by the respondent the question presented for •our determination was neither before the court nor decided, and .as they have received consideration by this court in Cutting v. Damerel, 88 N. Y., 410, they need not be further alluded to in this connection.

The judgment should be reversed.

Bradley, J.

(dissenting)—I do not see my way to concurrence in reversal of the judgment.

The purpose of the defendant to resign his position of director of the New York Lumber Auction Co., Limited, was not brought, to the attention of the board of directors. And his statement, made to that effect to Jones who was the secretary-treasurer of the company does not seem effectual to accomplish it.

The statute under which the company was incorporated provides that the members of the board of directors at their election and throughout their term of office shall be stockholders in such corporation to at least five shares, and shall hold their offices until their successors are chosen. Laws 1875, chap. 611, § 10. In view of that provision of the statute the question arises whether the transfer by a director of his stock operates to terminate his relation as such to the company, and if so whether the defendant did effectually for that purpose transfer his stock prior to the creation, of the debt upon which the action is founded.

My attention has been called to no other provision of the-statute upon the subject of the eligibility of a person for the place of director. And that does not in terms declare 'that such relation shall terminate when he ceases to be a stockholder. The-defendant was such when elected, and the statute provided for his. retirement only on the election of his successor. But without, further considering that question, the inquiry arises, did the plaintiff, as between him and the company, cease to be a director-before such debt was contracted ? By reference to the statute it. is seen that “ no transfer of stock shall be valid for any purpose-whatever, except to render the person to whom it shall be transferred liable for the debts of the corporation according to .the provisions of the act, until it shall have been entered ” in the book referred to by an entry showing from and to whom transferred.” Id., § 17. And the by-law of the company provided that transfers of shares should “ only be made upon the books o£ the company ” in the manner there directed. The defendant, owned eighty shares of the stock, and no more than seventy-five of them were transferred upon the books of the company, and as-between him and it his relation of stockholder of five shares continued. Adderly v. Storm, 6 Hill, 624; Worrall v. Judson, 5 Barb., 210; Rosevelt v. Brown, 11 N. Y., 148.

It would seem that the question here is not in the fact whether the defendant had transferred his stock so as to vest title to it in another as between them, but is, what was his relation which the-company could treat him as having to it, as it is between him and the corporation that the inquiry would arise whether or not he-continued to be one of its directors. And for the purpose of his eligibility he would properly be treated by the company as a stockholder until his transfer was entered on the book. If that view is sound, he never as to the company ceased to have five shares; of the stock after he was elected director.

While it is true he made and delivered to Jones the certificate; with an assignment upon it covering the eighty shares without, consideration, it appears that when the certificate was surrendered, and new ones taken, the shares were so divided that Jones took .seventy-five, and a certificate for the other five was issued to the defendant. All inferences of fact legitimately arising from- suck-transaction and bearing in that direction are to be taken in support of the recovery.

These suggestions lead to the conclusion that the judgment should be affirmed.

Judgment reversed and new trial granted, with costs to abide-event.

All concur, except Bradley, J., dissenting.


author: Vann, J.

text:
    Edwin L. Thomas, Resp’t, v. William H. Stewart et al., Resp’ts, and Aslan Sahagian, App’lt.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    1. Mechanics’ lien—Building contract—Performance.
    The second instalment of a building contract was to be paid “when floors should be laid, partitions set and ready for the mason. There were-some departures from the contract as to material, but the architect’s refusal, was placed on other grounds, some of the items of which were proven to-be outside of the requirements for the second payment, and some were-remedied, but a certificate was again refused. Held, that the architect unreasonably withheld the certificate, and this furnished no protection to the owner against lienors who were entitled to be paid out of the second instalment, although the owner had gone on and completed the building, upon the contractors having made an assignment.
    2. Same.
    The court refused to find that the owner had paid $1,680 on account of the work. Of this, $1,500 made the first payment. Held, that the evidence offered compelled the conclusion of payment to the amount claimed.
    Appeal from a judgment of the general term of the supreme cou'rt in the second judicial department, affirming a judgment entered on the decision of the court on trial at special term.
    This was an action for the foreclosure of a mechanic’s lien filed under the general act against certain property in the city of Yonkers belonging to the defendant Sahagian: Other lienors, who were joined as defendants, appeared and asserted their claims by answer duly served upon the owner.
    By a contract dated September 28, 1888, the firm of Stewart & Edmonds agreed to furnish the materials and do the work required by the carpenter’s plans and specifications to erect a four story brick building for Mr. Sahagian, who agreed to pay therefor the sum of $6,176, in four payments; each to be made on the certificate of the architect; the first of $1,500 when the building was enclosed and the roof on; the second, of like amount, when the floors were laid, “ partitions set and ready for mason; ” the third of $1,600 when the windows were in “ and standing trim * * * on,” and the fourth of $1,576 when the contract was completed and the building accepted. The first payment was made without objection, and the refusal of the owner to make the second resulted in a refusal of further performance by the contractors. Each party to the contract claimed that the other made the first default, and the trial court found against thes -owner on that issue. The contractors abandoned the contract March 5, 1889, and the next day made a general assignment for the benefit of their creditors to the defendant Stewart. March 23, 1889, the owner caused notices to be served upon the contractors and their assignee requiring them to complete the contract according to the plans and specifications, and on their omitting to do so, although there was no provision in the contract on the subject, he completed it himself at an expense of $3,989. He conceded a recovery to the extent of the difference between that sum and the amount unpaid on the contract, which is enough to protect the plaintiff, but not enough to fully pay all of the other lienors.
    The trial judge found that by the 15th of February, 1889, the ■contractors had performed all the work and furnished all the materials required to entitle them to the second payment, and that they demanded a certificate from the architect accordingly, but that he wrongfully and unreasonably refused to give them one. 'They also demanded the second payment from the owner, after-informing him of the facts, but he refused to pay any part thereof without the certificate of the architect, and soon after they refused to complete the building.
    Upon the request of the defendant it was'further found that at the time of the abandonment of the contract the contractors “had not made and set in each partition back of each water closet a four by ten inch ventilator, with round tin ventilator in each closet and extended two feet above the roof, as required by the specificationsthat they “ had not placed in the cellar, beneath the • girders, the two locust posts,” as so required; and that window frames made of cottonwood “ were put in without the knowledge, or consent ” of the owner. The court refused to find upon the like request that several other things required by the specifications had not been done.
    The appellant does not ask for a reversal of the judgment, but for a modification thereof by deducting all that was allowed ■against him, except the difference between the amount unpaid ■and the cost of completion.

      Joseph F. Daly, for app’lt; Ralph F. Prime, John H. Ferguson ■and Matt. H. Ellis, for resp’ts.

       Modifying 32 St. Rep., 1057.

   Vann, J.

If the second instalment was due when the demand ■of payment was made by the contractors, they could lawfully decline to go on with the contract, because the owner had refused performance on his part. Graf v. Cunningham, 109 N. Y., 369; 15 St. Rep., 524; Schwartz v. Saunders, 46 Ill., 18. If the second instalment was not then due, the contractors were in default, and -the lienors, who claim under them, are entitled to a recovery only to the extent conceded by the owner, or to the difference between the amount unpaid at the date of- such default and the sum re■quired to complete the contract. Van Clief v. Van Vechten, 42 St. Rep., 736; Malbon v. Birney, 11 Wis., 108.

By the terms of the agreement the second payment was to become due when the floors were laid, “ partitions set and ready for mason.” The' owner claims that the contractors failed in performance, to the extent necessary to entitle them to the second payment, by omitting several things required by the plans and specifications. The lienors claim that the features omitted were-waived by the architect, prevented by the owner or not required to be done as a condition precedent to the second payment, and evidence was given in support of the claim, but the court made-no specific finding upon the subject. The use of cottonwood m certain window frames, required to be made of pine, was not-denied, but one of the contractors testified that on hearing that the architect objected, he went to see him and said that cottonwood could be used as well as pine; that they were merely skeletons, and were covered over with pine casings on the outside- and inside. After hearing this explanation the architect said: “ You may use those frames, but bring no more cottonwood on the job. The witness further testified that no cottonwood was-used after that, except that some balusters were turned for use-on the rear piazza, but they were no part of the work, required to be done prior to the second payment. According to the evidence of another witness no cottonwood whatever was brought on the premises after the architect objected. The architect testified that he allowed certain window frames made of cottonwood-to be put in, provided the contractors would use no more cottonwood in the building, but he claimed that after that more window frames of the same kind were put in against his protest. When, however, he was asked to certify that the second payment was-due, he did not mention this as an objection, but based his refusal upon other grounds.

There was other testimony tending to corroborate the theory of either side upon the question of consent to the change, which thus became a question of fact for the trial court to determine, and it will be presumed, in support of the finding that the second payment was due, that the court found in favor of the lienors upon this issue. Ostrander v. Hart, 130 N. Y., 406; 42 St. Rep., 513; Thomson v. Bank of British North America, 82 N. Y., 1; Burnap v. Nat. Bank of Potsdam, 96 id., 125. But the appellant insists that the architect had no right to substitute an inferior-article without the consent of the owner, and the authorities support that position. Glacius v. Black, 50 N. Y., 145; Bigler v. The Mayor, 9 Hun, 253.

The court, however, found upon evidence that is not printed in the case, but which it is expressly stipulated proved the fact, “that said Sahagian employed the said George Rayner as his architect and servant to superintend the work of erecting said house and the doing of the work thereof, and the said Rayner did so superintend such work and the erecting of such house.” The-contract provided that all work was to be done to the satisfaction of the architect, and the owner told one of the contractors that, everything was left with the architect. Inasmuch as Mr. Rayner was not only the architect, but was also the agent of the owner and represented him in the erection of the building, we think that he had authority to consent to the substitution complained of. The fact that the change was made without the knowledge or ■consent of the owner, as found by the court, evidently means, when the context is considered, without his personal knowledge ■or consent.

It is further insisted that injustice was done the owner because the contractors failed to put two locust posts in the cellar beneath ■the girders, as required by the specifications. The object of these posts were to support the girders, which in turn support the partitions that were to be set and ready for the mason before the second instalment became payable. While there was nothing in the specifications to indicate when the posts were to be put in, as the object in putting them in was to support the partitions, it is reasonable to conclude that it was contemplated by the parties that they were to be placed in position before the partitions were built. The contractors, however, were only to do the carpenter work. They had nothing to do with the mason work, which the owner was to do himself. Evidence was given tending to show that the locust posts could not be put in because the cellar was not sufficiently excavated to permit it, and the stone foundations upon which they were to rest were not built, all of which was mason work. The contractors, therefore, put in temporary posts so that they could go on with their work, and, according to the evidence, this was the only practicable course. The architect did not include the omission to put in permanent posts among his reasons for declining to give a certificate. We do not think that the owner can take advantage of his own omission, nor justly complain because work was not done, when the failure to do it was owing to himself. Smith v. Norris, 120 Mass., 58; Welch v. Sherer, 93 Ill., 64; Charnley v. Honig, 74 Wis., 163.

The specifications required the contractors “to make and set in partition back of each water closet a four by ten inch ventilator.” The trial judge found that these were not put in, but he refused to find that the partitions were not properly set and ready for the mason on that account. The specifications do not provide when the ventilators were to be put in, nor whether they were to be behind lath and plaster, or behind wood. They were not a part of the partition, but were to be “ set in ” it, presumptively after the partition was erected. Some witnesses testified that if they were put in and plastered over, the plaster, having no “ clinch," would not adhere thoroughly, and that the proper way was to put them behind wood, so that they would be accessible for repairs and other purposes, without tearing away the lath and plaster. Evidence was also given, without objection, to the effect that they should be put in after the masons had done their work of plastering the partitions. Other witnesses testified that they should be lathed and plastered over, so that they could not be seen, and that this was the usual way. The architect was of this opinion, but he gave no such direction to the contractors, and did not say so when he refused the certificate, nor allude to the ventilators in any way. This conflict in the evidence justified the finding of the trial court in favor of the lienors upon this subject .and its refusal to find as requested by the owner. Access to the ventilators was a matter of some importance, and in the absence of any provision in the specifications or instruction from the architect, it was reasonable to conclude that the contractors had the right to put wood, instead of lath and plaster, over the open spaces in which the ventilators were to be placed.

The observations already made apply to the other alleged omissions on the part of the contractors, none of which were specifically relied upon by the learned counsel for the owner, either in his oral argument or in his points. As the payments were to be made upon the certificate of the architect, his refusal to certify that the second instalment was due is relied upon as a conclusive ■defense to the efforts of the lienors to enforce their claims in ex■cess of the amount conceded by the owner to be due.

According to the evidence of the contractors they made four demands of the architect for a certificate that they were entitled to the second payment. On the occasion of the first demand he refused because the door jambs were not set. Thereupon the ■contractors, although claiming that the door jambs were not a necessary part of completing the house to the laying of the floors and the setting of the partitions, proceeded to set the door jambs, when they again demanded a certificate, but the architect said that he would not issue one until the back piazza was up. The contractors insisted that this was not required, be■eause it was outside of the house, but, notwithstanding, they put it up and laid the floors therein. When the certificate was next demanded, the architect refused it because the piazza was mot finished. They • informed the owner of what they had done and that the architect would not give a certificate and asked him to pay them, bnt he refused, stating that he- did not know anything about it and that everything was left with the architect. A witness testified to a statement made by the architect, although the latter denied it, that in drawing the contract he had made the first and second payments too large, thus suggesting a personal reason for his persistent refusal. There was no xequest to find that the piazza was not finished. We think that 'the evidence warranted the finding, as made by the trial court, that the architect unreasonably withheld the certificate. While it may have been proper to require the piazza to be erected and the floor thereof laid, so that progress of erection should be uniform inside and outside of 'the building, it does not seem reasonable to require the piazza to be finished at a period when no part of the interior was finished. The second payment was ■earned when the floors were laid and the partitions set, ready for the masons. This did not include the completion of the back piazza, either by specific mention, or because that work ■was necessary in order to do anything that was specifically ■mentioned. As the refusal of the architect was based upon an unreasonable requirement, it furnished no protection to the owner. Thomas v. Fleury, 26 N. Y., 26; 15 Am. & Eng. Ency. Law, 77.

The' court refused to find, upon the request of the owner, that he had paid the contractors the sum of $1,680 on account of said work. This included the first payment of $1,500, which is admitted, the further sum of $100, which it is not denied was in fact delivered by the owner to the contractors, and orders to the amount of eighty dollars drawn by them, and accepted by him. No controversy arises as to' the payment of $1,500, but it is claimed that the rest, $180, was a loan, aud not a payment, and that the court is presumed to have so found. One of the contractors testified as follows : “ I think Mr. Sahagian gave us $100' besides that payment of $1,500, and he accepted orders for §80, and he and I agreed on $1,680. * * . * j ;have received altogether * * * $1,680, $1,5.00 on the first payment, and $180» loaned to us. It was not credited to me on account on the second payment, but on account of the contract. That money, the $180, was given to me by Sahagian as an accommodation, and had nothing to do with the payment at all.” The owner testified: “I paid them $100, and then I paid $80. He brought an order from Mr. Hunt. The $100 was paid before the first payment. This, was done, as James Stewart says, because he and I were very friendly.”

Our attention has been called to no other testimony upon the subject. The statement of the contractor that he and the owner agreed on $1,680 admits of no construction except that they agreed on it as a payment. His subsequent statement that it was not credited on account of the second payment, but on account of the contract, does not vary the legal effect of the transaction, but confirms the theory of a payment on the contract. Any payment credited on the contract after the first must of necessity be applied on the second, or it cannot be applied at all, and the owner can get no benefit from it. When the witness characterized it as a loan, it is evident that he meant a loan or advance on account of the contract. We think that the evidence compels the conclusion of payment to the amount claimed, and that the learned trial court, amidst the confusion caused by the presentation of four sets of requests, each in behalf of a separate interest, inadvertently omitted to give credit for the entire sum actually paid.

After examining all of the exceptions, we are of the opinion that upon the facts as found, together with those having the support of evidence that are presumed to have been found under the rule, the record presents no error calling for a reversal or modification except the refusal to find, just considered.

The judgment should be reversed and a new trial granted, with costs to abide the final award of costs, unless the defendants Lawrence, who filed the last lien, and William H. Stewart, as assignee of Stewart & Edmunds for the benefit of creditors, stipulate within thirty days to reduce the amount of the recovery in their favor respectively by deducting therefrom the sum of $180 with interest thereon, from March 7,1889, in which event the judgment as so modified should be affirmed, without costs in this court to any party.

All concur.


author: Bradley, J.

text:
    William G. Davidson, Resp’t, v. John M. Cornell et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    1. Master and servant—Negligence—Construction of elevated railroad.
    Plaintiff was employed by defendant in the construction of an elevated railroad. He was at work upon a platform or “ traveler ” weighing ten tons which ran upon longitudinal girders when placed in position, and was used in connection with another machine to hoist the girders from the street. It was moved by a traction rope and block fastened to a side girder. While being so moved the girders, being insufficiently fastened, gave way and fell, carrying the platform and plaintiff to the street. There was no lateral bracing between the girders, as plaintiff knew. Held, that the consequences to be apprehended from such omission were not within the hazards of the services assumed by him, and he was not as a matter of law chargeable with contributory negligence, and the motion for non-suit was properly denied.
    . 3. Same—Evidence—Medical testimony.
    A physician who had made an examination of plaintiff was called as a witness as to the extent of his injuries, and his evidence as to statements .made to him by plaintiff during such examination more than a year after rthe accident was admitted with the understanding that it would be stricken •out unless the truth of such statements was proved, and plaintiff subsequently swore to their truth. Held, error; as the declarations were not in.structive nor were they made with a view to medicial treatment, and were .merely plaintiff’s statement of the effect upon him of the injury. ■
    Appeal from judgment entered on order of the general term of The city court of Brooklyn, affirming judgment entered on verdict in favor of the plaintiff.
    The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, who were engaged in the construction of a double track elevated .railway on Broadway in the -city of Brooklyn. This was done by setting columns upright on either side of the street opposite 'each other in transverse lines and longitudinally about-sixty feet ■apart, placing upon them iron crossbeams which supported girders, four in each span, extending from one to another of those crossbeams. And for the purpose of hoisting those long girders from the ground to their places in the structure, there was used a steam -engine, boiler and other apparatus upon a platform on wheels. This was, in the evidence, designated as a “traveler.” It was about twenty feet in width and about thirty feet in. length, on twelve wheels, three resting on each of the four girders, and its weight was from ten to twelve tons. In advance of this traveler and disconnected from it were two derricks or cranes called by the witnesses “ grasshoppers,” also on wheels. In hoisting a girder the rope to which the tackle was attached led from it through the top of the crane, thence back to the traveler where, ■by the power of the engine, it was wound about a drum, thus raising the girder to its place on the cross-beams. When the four ■girders constituting a single span were thus hoisted and bolted the grasshoppers were taken onto that span and the traveler, by means of a rope and tackle attached fastened by a clamp to one of,the inner longitudinal girders some distance in advance of it? and the application of the power of the engine, was moved forward onto and near the forward end of the span of girders next in. the rear to that on which the grasshoppers rested, there stopped, and, by the use of chocks, stayed, and another span of girders-hoisted to their places. By this method of construction the work had proceeded nearly one mile when, on February 14, 1888, the traveler, while being so moved, and the girders on which it rested, fell to the ground causing the injury to the plaintiff of which he complains. He was an employee of the defendants upon the traveler, and had been there so engaged for some time. He recovered $2,500. The judgment was affirmed by the general term.

      James Troy, for app’lts; Charles J. Patterson, for resp’t.

       Reversing 31 St. Rep., 983.

   Bradley, J.

The immediate'cause of the giving way of the-girders and the fall of the structure was the subject of some contention upon the evidence..

The plaintiff’s counsel contends that it was the result of the negligent failure of the defendants to perform their duty to their employees, in that they did not use the care imposed upon them to provide a reasonably safe structure for the men to work upon or proper means for its support or movement for the purposes of the service required. If that proposition in its application to the cause of the calamity in question had the support of evidence the charge of negligence on the part of the defendants was sustained.. Ryan v. Fowler, 24 N. Y., 410; Pantzar v. Tilly Foster Mining Co., 99 id., 368; Kranz v. Long Island Ry. Co., 123 id., 1; 33 St. Rep., 46.

There is no question about the competency of the mep to perform the duties devolved upon them in the service. The charge of negligence against the defendants has relation mainly to the system provided for the performance of the work of construction in which the plaintiff was engaged, and is, that there was a want of reasonable care in furnishing precautionary means for the safety of the employees upon it. The structure called the traveler, containing the engine, boiler and other appliances, was moved on the girders from one cross beam to another having the weight of ten -to twelve tons, and required a substantial support. In this instance for some cause, it is said, the girders swayed as the traveler was moving along upon them, and they, with it, fell to the ground. There was no lateral bracing placed between the girders before this weighty structure called the traveler was moved over them. Hor were the ends at the bottom bolted. The upper portion of each end of the girders extended beyond the loxver portion and when it projected on to the cross beam, where it rested on a seat plate and was held by two bolts, the lower portion set up against the beam and its bottom rested upon a bracket,, where provision was made for bolting it. also, but the bolting there was omitted until'after the passage of the traveler over the-girders. This was the method of going along with the work up-to the time in question.

There was evidence tending to prove that the bracing would have added materially to the stability of the girders, to the support of the traveler and to the safety of the employees engaged upon it; and that such bracing is usual in like cases on other work; also that bolting the girders at the bottom as well as at the top would have essentially aided in keeping them in the position in which they were placed. The conclusion was warranted that the situation in which the girders were when the platform conveying the engine, boiler and other implements was moved over them was such as to be deemed in defective condition for such use and purpose. Not because the girders had not of themselves adequate strength, but for the reason that they had not the support to keep them in proper position which they should have had and which may have been given to them by such lateral bracing, and further support would have been given by bolting the ends at the bottom. But it seems that the onward movement of the traveler was not delayed for that purpose, nor sufficient time to straighten bent girders. Another force of workmen was supplied to follow the traveler, laterally brace them, and straighten such of the girders as were bent and complete the bolting of them at the ends. This plan and system of proceeding with the work of construction may have been adopted and employed quite as much in reference to expedition as safety. The movement of the platformon twelve wheels, each two feet in diameter, was slow and regulated, when necessary, by a rear or heel rope used to restrain its movement down grade and to aid in stopping its progress. And the steadiness of its movement very likely was supposed would give safety to it. But in view of the fact that it may have been rendered more so and perhaps perfectly safe by taking a little more time to brace and bolt the girders before attempting to pass the platform over them, permitted the conclusion that failure to do so was negligence on the part of the defendants in the method adopted to proceed with the work. There was some, but not very satisfactory, evidence that the heel rope, as it was called, in the rear was defective, and on the occasion in question was broken.

On the part of the plaintiff evidence was also given tending to prove that the rope or cable to which .the • power was applied to draw the traveler over the girders was not in line with its motion or movement; that the. clamp employed not being such as could be fastened to the cross beam in direct line from the place it was attached for that purpose to the moving platform, was fastened a distance in advance of it to one of the longitudinal girders. This was the subject of considerable evidence, and it is by no means clear that the divergence of this rope from the direct line of motion was such as to be seriously prejudicial to the safe movement of the structure, although the evidence may have presented a question in that respect for the jury in connection with the condition in which the girders were when required to support the transmission of the platform over them. But the main question seems to have had relation to the defective manner in which the girders were stayed to their places.

It is, however, urged by the defendants’ counsel that although they may not have been as firmly supported as they should have; been, the plaintiff having been engaged on the work for considerable time knew the situation of the girders, that they were-neither braced nor bolted at their ends to the brackets on the cross beams, and assumed such hazards as were incident. to the-operation of the platform on which he was engaged in the service. It is, as a general rule, true that a servant entering into-employment which is hazardous assumes the usual risks of the service and those which are apparent to ordinary observation, and when he accepts or continues in the service with knowledge; of the character of structures from which injury may be apprehended, he also assumes the hazards incident to the situation^ Gibson v. Erie Ry. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Sweeney v. Berlin, etc., Envelope Co., 101 id., 520; Hickey v. Taaffe, 105 id., 26; 6 St. Rep., 426; Williams v. D., L. & W. R. R. Co., 116 N. Y., 628; 27 St. Rep., 760. Those not obvious-assumed by the employee are such perils as exist after the master has. used due care and precaution to guard the former against danger. And the defective condition of structures or appliances which by the exercise of reasonable care of the master may be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter’s knowledge of the situation, is such as is apparent to his observation. Kain v. Smith, 89 N. Y., 375; McGovern v. C. V. R. R. Co., 123 id., 280; 33 St. Rep., 416.

It was plain to be seen that there was no lateral bracing between the girders. This the plaintiff knew. He may also have-observed that the ends were bolted only at the top. As they were-resting upon the cross beams, it may be that no apprehension of danger in the passage of this loaded platform over them was apparent to ordinary observation. And the importance of such bracing and bolting for the purpose of safely taking and moving that weight upon them by the means applied and in the manner it was, may have required some skill or judgment not available-to an ordinary observer or to the plaintiff. The knowledge of what appearecl to him to be the situation may not necessarily have advised the plaintiff of the consequences which might result from it. The place of the plaintiff’s service was on the platform, where was located the power applied to raise the girders, and when that was being done it was sixty feet or more in the rear from the place where the girders as they were hoisted were placed and bolted. The inference was permitted from the evidence that, the defective condition occasioned by the want of bracing and bolting for the purposes of bearing the moving weight upon the girders and the consequences to be apprehended from such omission, so far as they were attributable to such causes, were not within the hazards of the service assumed by the plaintiff, nor was he as matter of law chargeable with contributory negligence. And therefore the motion for nonsuit was properly denied.

For the purpose of proving the character and extent of the injury the plaintiff had sustained, a medical witness was called and. testified that the Saturday before the trial commenced (which was more than a year after the accident) the plaintiff came to his house. and submitted himself to the examination of the witness. After testifying that he formed an opinion that the plaintiff was suffering from an injury to the spinal cord from some cause, the doctor was asked: “ What are the symptoms of that injury, and what does that injury do in case of disabling him?” And answered: There is inability to walk, inability to stand even. There is want of sensation in the lower extremities, there is marked tenderness over a portion of the spine, there is a loss of sexual power. Of course my opinion in that respect must rest upon his declarations, but if his statement be true, there is an entire loss of sexual power.”

The defendants objected to the witness stating what the plaintiff said to him. And on the doctor proceeding to state something further that the plaintiff had said, the defendants’ counsel moved that it be stricken out; the court, in denying the motion, remarked that the evidence was taken with the understanding that it would be stricken out unless the fact should be proved by him. The defendants’ counsel excepted. The witness further testified that he asked the plaintiff about his power of sexual intercourse. The doctor was then asked the following question, objection to which was overruled, and exception taken:

“ Q. What question did you ask him, and what reply did he make, concerning sexual intercourse ? A. T asked him whether or not he had sexual intercourse, and he said he had not; I said to him, have you since the injury? A Never. I said to him, have you had any intercourse with your wife since then ? He said, I have never been able to.”

And the witness gave some further evidence of the declaration of the plaintiff on the subject of his sexual disability during that time. In overruling the objection the court said that he would receive the evidence under the “same ruling and limitations” already indicated. The question arises whether or not the reception of this evidence was error. As a general rule declarations made out of court by a party are not admissible as evidence in his behalf. But his statements to his attending physician of the nature of the symptoms of his malady or suffering have quite uniformly been held admissible. And from necessity they were formerly deemed competent when made to persons other than medical attendants under some circumstances. Caldwell v. Murphy, 11 N. Y., 416; Werely v. Persons, 28 id., 844; Matteson v. N. Y. C. R. R. Co., 35 id., 491. But since the Code permits ■parties to make their statements under oath as witnesses, that necessity in this state has ceased to exist, and as a rule declarations made to persons other than the medical attendant of the party are not admissible as evidence. Reed v. N. Y. C. R. R. Co., 45 N. Y., 574; Roche v. Brooklyn City, etc., R. R. Co., 105 id., 294; 7 St. Rep., 361.

It was, however, held in Hagenlocher v.C. I. & B. R. R. Co., 99 N. Y., 136, that the evidence of a non-medical witness that the plaintiff (who had received an injury) manifested pain by screaming, was competent because it was apparently involuntary and corroborated by what appeared to be her condition. The rule of admissibility of statements -made to physicians by persons who> have been physically injured or are suffering from disease is not an unqualified one. They must relate to present and not past pain and suffering. Towle v. Blake, 48 N. H., 92. And it has been held that their declarations after controversy has arisen made at a medical examination then had for the purpose of preparing evi- ' dence and not for medical treatment were incompetent. Grand Rapids & Ind. R. R. Co. v. Huntley, 38 Mich., 537; Jones v. Prest., etc., of Portland, 50 N. W. R., 731. In Matteson v.N. Y. C. R. R. Co., 35 N. Y., 487, it was held that expressions of pain and suffering made by the injured person to physicians when they were examining him were competent evidence notwithstanding the examination was made by them with a view to testifying as to the= result of it in a suit then pending. The same was said in Kent v-Town of Lincoln, 32 Vt., 591. It may be seen that when attended by a physician for the purpose of treatment there is a strong inducement for the patient to speak truly of his pains and sufferings, while it may be otherwise when medically examined for the: ■ purpose of creating evidence in his own behalf. It is therefore-that the weight of judicial authority is to the effect that the statements expressive of their present condition are permitted to be given as evidence only when made to a physician for the purposes of treatment by him. Barber v. Merriam, 11 Allen, 322; Fay v. Harlan, 128 Mass., 244; Roche v. Brooklyn City, etc., R. R. Co., 105 N. Y., 294; 7 St Rep., 361.

. In the present case the declarations in question of the plaintiff were not instructive, nor were they made to the physician with a. view to medical treatment. They consisted not of examination of present pain or suffering, but were the plaintiff’s statements, so-far as called for by the doctor, of the effect upon him of the injury and the consequences which had followed in such respects-from the time it occurred; a period of nearly fifteen months. This was hearsay, and is very different from that of a medical witness-■as to the expressions by a patient or person suffering from injury or disease, indicating pain or distress or expressive of the present, state of his feelings in that respect. We. think the reception of the evidence was error. And although the plaintiff testified to* the truth of the statements made to the doctor, his evidence did not cure the error.

The character of his injury was an important fact as beai’ingupon the question of damages. And although his evidence may have constituted the basis in part at least of a hypothetical question for the opinion of the doctor, it cannot be said that the evidence given by the latter of the plaintiff’s declarations was not prejudicial to the defendants. The plaintiff’s interest as a party-presented the question of his credibility for the jury, and his evidence could not properly be corroborated by proving that the facts to which he testified corresponded with the declarations-made by him to the doctor. This, for the support to the plaintiff’s evidence, was not admissible. Robb v. Hackey, 23 Wend., 50; Reed v. N. Y. C. R. R. Co., 45 N. Y., 574.

The other exceptions taken require no consideration, as they may not necessarily arise upon another trial.

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

All concur.


author: Lewis, J.

text:
    Daniel Sullivan, Resp’t, v. Winfield S. Newman, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. False imprisonment—Dismissal op complaint.
    Where there is evidence in an action for false imprisonment that one of the defendants was instrumental in causing the issuance of the execution on. which the arrest was made it is error to dismiss the complaint as to him.
    2. Same—Evidence—Cross-examination.
    While upon cross-examination a witness may be required to testify that, he has been convicted of crime, it is not competent to compel him to testify that he has been indicted simply.
    3. Same—New trial.
    In an action for false imprisonment against an attorney who issued a body execution which was unauthorized and oue whom there was evidence to show caused its issuance, improper evidence was admitted, the complaint was dismissed as to the last named defendant, and verdict rendered against the attorney for forty-three dollars. Plaintiff had been detained from home six weeks; his business interrupted and he was put to expense in procuring his discharge. Held, that a new trial was properly granted.
    (Macomber, J., dissents.)
    Appeal by the defendant, Newman, from an order made at the Livingston county circuit, setting aside a verdict against the defendant, Newman, and an order dismissing the plaintiff’s complaint as to the defendant, Sackett, and granting the plaintiff a new trial as to both defendants. The order was granted April 25-1891.

      Hakes, Page & Acker, for app’lt; John B. Abbott, for resp’t.
   Lewis, J.

The defendant Newman is an attorney at law, and by the advice and direction of the defendant, Sackett, issued a body execution against the plaintiff to the sheriff of the county of Livingston.

The plaintiff was a resident at the time of the city of Rochester, county of Monroe, and being temporarily in the county of Livingston upon business, he was arrested by virtue of the execution and committed to the county jail of the county of Livingston, where he was detained within the jail limits from the 5th day of February, 1889, until the 19th day of March following, on which day the execution upon which he was imprisoned was set aside by the order of the court, on the ground that it was irregular and void, and the plaintiff was thereupon released and discharged from imprisonment.

He brought this action against the defendants for false imprisonment, alleging in his complaint that the -defendants falsely and wrongfully and without authority of law caused his arrest and imprisonment.

It was conceded upon the trial that the execution upon which the plaintiff was arrested was void, and that his arrest and imprisonment were illegal. There was a conflict in the evidence as to whether the defendant Sackett directed Newman to issue the execution; a question of fact was thus presented which should have been submitted to the jury.

At the close of the evidence the pourt, upon the motion of the ■attorney for Sackett, dismissed the complaint as to Mr. Sackett; the plaintiff’s counsel' duly excepted; the case was thereupon submitted to the jury as to the defendant Newman, and the jury rendered"a verdict for the plaintiff against Newman for the sum of forty-three dollars. At the same term of court, upon plaintiff’s motion, an order was granted setting aside the verdict and the order dismissing the complaint as to the defendant Saclc-ett; a new trial was ordered, and the defendant Newman appealed to this court from the order granting a new trial. The defendant Sackett does not appeal.

The order fails to state the' grounds upon which it was .granted.

We are at liberty, however, to dispose of the appeal, notwithstanding the omission. Pharis v. Gere, 107 N. Y., 281; 11 St. Rep., 393.

It is quite apparent from the examination of .the case that •there were sufficient grounds to justify the making of the order. While the case fails to inform us as to the precise reason why the execution was Void, it is obvious from reading the evidence that the trouble was not because of any irregularity in its form.

The judgment upon which it was based evidently did not belong to the class of cases in which a body execution is authorized to be issued. There was abundant evidence to make a j/rima facie case that Sackett instructed and directed Newman to issue the execution.

The village of Avon was the owner of the judgment for the collection of which the execution was issued. The defendant, Sackett, was clerk of the village, and was officially interested in having the judgment collected.

The court, in submitting the case to the jury, instructed them that the plaintiff had made a case against Newman because of the fact that he issued the execution upon which the plaintiff was ■az’rested, and that the only question for the jury to consider was the question of damages.

As there was evidence that Sackett was instrumental in causing the execution to be issued, it was error as to him to take the case away from the jury.

The plaintiff was arrested and detained away from his hoiiie and family for six weeks. His business was interrupted; he suffered the disgrace and mortification of being deprived of his liberty; he was put to the expense and trouble of securing his discharge; and under the circumstances a verdict for forty-three dollars was certainly not a very munificent amount.

When the trial justice came to review the proceedings of the trial, he came to the conclusion that errors had been committed which entitled the plaintiff to a new trial.

Improper evidence was admitted which probably tended to-lessen the amount of the plaintiff’s recovery.

The plaintiff was a witness for himself, and gave important and material evidence tending to make out his cause of action. Upon his cross-examination he was compelled by the court, notwithstanding the objection and exception of his counsel, to testify that he had been indicted one or more times for violating, the excise law. This, concededly, was improper evidence.

While, upon cross-examination, a witness may be required to testify that he has been convicted of crime, it is not competent to compel him to testify that he has been indicted, simply.

There is a prejudice in the minds of many jurors against the-business of selling liquor; and this evidence may have affected the amount of the plaintiff’s recovery.

The defendant called as a witness one Charles Miller, and the following proceedings were had: “Defendant’s counsel proposed to show by this witness that there are four indictments against-Sullivan, and the minutes of the court show that he has been convicted three times, and there are two of them that nothing has been done with.”

The plaintiff’s counsel objected upon the ground that the fact that the man had been convicted of violating the excise law does-not affect his testimony under oath.

Objection overruled and plaintiff duly excepted.

Witness proceeds: “ I have four indictments against Daniel Sullivan; I do not know what disposition was made of them; I never saw them before until to-day; I have not looked them through to see what the disposition of them is; I cannot tell without going into each of them separately to show ; the first indictment was filed on the 26th day of April, 1871.

“ Under the minutes of the court of sessions for the 9th day of June, 1874, there appears an entry of violation of the excise law, People against Daniel Sullivan. He pleaded guilty to the indictment, and was sentenced to pay a fine of thirty dollars.
“ Under the minutes of the court of sessions for the 14th of December, 1874, I find the entry, The People vs. Daniel Sullivan. He was indicted for violation of. the excise law.
“ He was tried, found guilty, and sentenced to pay a fine of twenty-five dollars.
“ Under the minutes of the court of sessions for the 2d day of June, 1879, I find a case of The People vs. Daniel Sullivan, for violation of the excise law. Upon appeal to the general term said defendant was sentenced to pay a fine of twenty-five dollars.
Cannot tell whether this was the same case on appeal that I read before, or not.
“ There is record here, but not in this book. I do not know of any other record against Daniel Sullivan.”

Plaintiff’s counsel moved to strike out all of the evidence of this witness upon the ground, first, that it was immaterial; second,that it is incompetent; and, third, that it is too remote.

The motion was denied and plaintiff duly excepted.

The case fails to state how Mr. Miller' came to have possession of the indictments. He is spoken of in the appellant’s brief as the county clerk.

The case fails to show that he was county clerk; but assuming that he was, he was permitted to testify that he had possession of four indictments against the plaintiff.

On some of them the plaintiff had been tried and convicted, and no disposition had been made of the others, so far as the witness knew.

The plaintiff had been compelled to testify concerning indictments agairzst him. He testified that he had been indicted one or more times. The defendants were not at liberty to contradic.t this part of the plaintiff’s testimony. But they were allowed to show that he had been indicted more times than he had testified to, and thereby impeach him.

This incompetent testimony tended to degi’ade and impeach the plaintiff. While the objections taken by the plaintiff to Miller’s ■evidence were quite informal, the objection to the question propounded to him. as to the number of times he had been indicted was well taken ; it was not required that the grounds should be stated, as the evidence was not in any view material.

The admission of this improper evidence, and the erroneous -dismissal of the complaint as to the defendant Sackett, justified the court in setting the verdict aside, and granting a new trial as to both defendants.

The trial justice very properly came to the conclusion that the plaintiff's case had not been fairly and properly presented to the jury; that he had ez-roneously dismissed the complaint as to the -defendant Sackett, and that justice demanded that the plaintiff should be permitted to again try his case; and I think his conclusions were correct, and that the orders appealed from should be affirmed, with ten dollars costs, and the ■ disbursements of the .•appeal.

So ordered.

Dwight, P. J., concurs; Macomber, J., dissents.


author: Macomber, J.

text:
    Orin S. Bacon, Jr., Resp’t, v. Albert Jacobs et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Civil damage act—Charge.
    In an action under the civil damage act it is not error for the court to refuse to charge that the acts of the defendant must be proved to be the proximate cause of the injury, or the plaintiff cannot recover. It is the intoxication which must be shown to be the proximate cause; the furnishing of the liquor is but the remote cause.
    3. Same—Assault.
    The statute imposes an absolute liability for wrongs perpetrated by a person while intoxicated, where the intoxication was caused in whole or in part by the defendant, and precludes inquiry into the further question whether the injuries would have been inflicted except for such intoxicacation; and hence it is not error to refuse to charge that if the assault in question was committed on amount of an old feud, and not on account of ■the aggressor’s intoxication, plaintiff could not recover.

      Appeal by the defendants from a judgment entered in Ontario «county, March 3, 1890, and from an order, dated December 6, 1890, denying their motion for a new trial upon a case and exceptions.

      John Van Vo or his, for app’lts; Frank Bice, for resp’t.
   Macomber, J.

A recovery óf a verdict in the sum of $2,750 -was had at the circuit in this action, which was brought under chap. 616 of the Laws of 1873, commonly known as the Civil Damage Act.

The defendant, Jacobs, was the owner of a hotel in the village of Victor, 1ST. Y., but had nothing to do with the management of the business thereof. The defendant, Burns, was the lessee of the hotel and carried on the general business of a licensed hotel and inn keeper. The charge against both is that on the 5th day of February, 1889, the defendant Burns furnished to one Gilroy intoxicating liquors which produced his intoxication, and that Gilroy, when in that condition, produced in whole or in part by the liquor obtained at the defendant’s hotel, assaulted the plaintiff, «doing him serious bodily harm. Evidence was adduced at the trial sufficient to warrant the jury in finding that Gilroy was in fact intoxicated at the time he committed the assault upon the plaintiff, and that such intoxication was, partially at least, produced by the liquor obtained by him at the hotel kept by the defendant Burns.

The learned counsel for the appellant, in his argument in favor of a reversal of the judgment and order, mainly relies upon •certain exceptions taken at the trial, two of which merit serious consideration. The case shows that he requested the court to charge the jury that the acts of the defendants, or one of them, must be proved to be the proximate cause of the injury, or the plaintiff cannot recover. The court refused so to charge, and the defendants excepted. Counsel relies largely upon the case of Davis v. Standish, 26 Hun, 608, as an authority to show that such refusal of the judge at the circuit was an error. But we do not so understand that authority. The request made in this case was, not that the intoxication must be proved to be the approximate cause of the injury sustained by the plaintiff. If that proposition had been made and refused, a most grave question would have arisen of very doubtful solution. The acts of the defendants, or the acts of either of them, cannot be said to be the proximate cause of the assault made upon the plaintiff by Gilroy. Furnishing liquor to Gilroy was but a remote cause of such injuries. The intoxication of Gilroy was the proximate cause, so far as this question is involved, for it was that cause which immediately preceded and directly produced the effect complained of, and is to be distinguished from any remote, mediate or disposing cause.

There is indeed much in the discussion contained in the opinion above cited which goes to show, at least inferentially, that it is incumbent upon the plaintiff, in an action of this character, to prove that the injuries sustained were produced by the intoxicatian of a person, and that such intoxication was the proximate cause thereof. See Beers v. Walhizer, 43 Hun, 254; 4 St. Rep., 377. The question here raised by counsel, if of the precise-nature which he claims it'to be, could be more nearly allied to-the next question which we proceed to consider, and which is far from being free from doubt or embarrassment.

The other exception arose as follows: Counsel for the defendants at the trial requested the court to charge the jury that if Gilroy was intoxicated, or partly so, and committed the assault, not on account of his intoxication, but on account of an old feud that, he and the plaintiff had between them, the plaintiff could not recover. The court refused so to charge, to which refusal an exception was taken.

The evidence establishes, with some degree of conclusiveness,, that there did exist, before the time of the assault, a condition of-serious ill feeling between the plaintiff and Gilroy. The plaintiff" testified that Gilroy came to his shop on the day in question, and; wanted to know what nlaintiff had against him. Plaintiff says-that he told him that íie. had nothing against him. Gilroy accused him of talking badly about him. Plaintiff told him to-leave the shop or he would have him arrested. On cross-examinatian, the plaintiff testified that three or four times previous to the-trial he had caused Gilroy’s arrest, by lodging a complaint against him for being drunk and disorderly, upon which charge Gilroy was convicted and sent to the penitentiary or jail. After further testifying that he had reason to believe that Gilroy would come over to his shop, the plaintiff proceeds as follows, in his version, of an interview between him and the defendant Burns: “ He, Burns, asked me if he, Gilroy, should come over there and pitch into me, what I would do.

“ Q. Did you have any reason to believe that he would come over there? A. Yes, sir; I had reason to believe so.
“Q. Did he come in there frequently when he was drunk?' A. Yes, sir; oftentimes.”

The plaintiff also testified that Gilroy when sober was a mild-mannered and inoffensive man, and that he, the plaintiff, had no-apprehension of him except when intoxicated.

The defendant Burns testified that while walking by the plaintiff’s shop the latter spoke to him and wanted to know if that, long-legged (giving a vulgar name) was over to his house. “I says, who?’and he says, ‘that long-legged Gilroy,’and I says,. ‘ he wasn’t there when I came away;’ and he said, he has been over here raising the devil, and if he comes in again I will split him with a cleaver.’”

This evidence was of a character to enable the jury, if it had been permitted by the court, to say that the bitter feelings existing between the plaintiff and Gilroy were of a permanent character; liable at any time to lead to an open assault by Gilroy upon the plaintiff, irrespective of the state of intoxication of Gilroy. Wesav there is evidence pointing in that direction, but do not mean to be understood as saying that it establishes such, proposition.

The question, therefore, presented by this exception is, whether, ■under these circumstances, it was error for the court to refuse to •charge in accordance with the request made by the counsel for the defendants. Were it a question to be determined by the rules ■of the common law, but one answer could be made to it, and that is that such ruling was error. But under the rigid, not to say .harsh, provisions of the statute, we think, on the whole, that the •decision of the learned judge at the circuit maybe sustained. This statute, as has been repeatedly said, gives a cause of action where none existed at common law or by statute before its enactment, and renders persons liable to suit in damages where the principles of the common law do not. Volans v. Owen, 74 N. Y., 526; Bertholf v. O'Reilly, id., 509; Mead v. Stratton, 87 id., 493; Reid v. Terwilliger, 116 id., 530; 27 St. Rep., 563.

That portion of the statute material to this inquiry is as follows: “Every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person, or persons, who shall by selling or giving away any intoxicating liquors caused (sic) the intoxication, in whole or in part, of such person or persons,” etc.

This statute seems to render any person absolutely liable for the wrongs perpetrated by a person while intoxicated, when the intoxication was caused in whole or in part by the defendant, and precludes an examination into the further question whether or not, except for such intoxication, the injuries would have been inflicted. The plaintiff was injured in his person by Gilroy while the latter was intoxicated. The expression is “ by any intoxicated person,” apparently closing all inquiry into the question whether, in the instance now before us, Gilroy would have committed the assault except for the intoxication.

The courts of this state have upheld the constitutionality of •this law, and have steadily enforced its provisions with great uniformity of decision. It has now been on our' statute book ■for nearly twenty years, and we are not disposed to say that this particular provision, now, for the first time, so far as we are aware, ■directly involved, is in contravention of the organic law of the state.

In Neu v. McKechnie, 95 N. Y., 632, which was an action by a child to recover damages for the loss of means of support where the intoxicated person, his father, had, after killing his wife, committed suicide, it is stated in the opinion that the jury were not to inquire whether either the homicide or the suicide was the natural, reasonable or probable consequence of the defendant’s net, and then proceeds as follows: “ It is enough if while intoxicated, in whole or in part by liquors sold by the defendants, those acts were committed.”

On the whole, on account of the expressions contained in the opinion in the- above cited case, we think the judgment appealed from should be affirmed.

Lewis, J., concurs; Dwight, P. J., taking no part.


text:
    Sarah E. Hermans, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Railroads—Negligence—Failure to give signal.
    While the statute making it incumbent upon railroad corporations to sound the whistle or ring the bell at a distance of eighty rods upon approaching a highway has been repealed, yet so long as the company has at hand or there are available to it these appliances for giving notice of approaching danger, it is its duty to use them.
    2. Same—Contributory negligence.
    Deceased and another were riding in a closed carriage, and when about 200 feet from the crossing looked in both directions. After that point the-view was obstructed by houses to within twenty-seven feet of the tracks. The evidence as to whether a train of box cars was standing at that point completely obstructing the view was conflicting. Reid, that the jury was. justified on this evidence in finding that the deceased was not guilty of" contributory negligence.
    Appeal by the defendant from an order denying its motion-for a new trial, made upon the minutes of the court, entered February 21, 1891, after a verdict for the plaintiff in the sum of' $3,500 for damages for the killing of her husband in the village-of Lyons on the 11th day of January, 1890, at a railway crossing-on the West Shore railroad operated by the defendant.

      Camp & Dunwell, for app’lt; Louis Marshall, for resp’t.
   Macomber, J.

The plaintiff’s intestate was at the time of the-accident riding along Geneva street, which runs nearly north and south through a portion of the village of Lyons, and was accompanied by a man by the name of Bradley. They were going south from the central part of the village, and had crossed the ■ tracks of the New York Central & Hudson Eiver railroad, which are about 471 feet from the tracks of the West Shore railroad,, and, while attempting to cross the tracks of the latter railroad, they were struck by a passenger train, and the plaintiff’s intestate • received injuries from which he soon thereafter died. The men. were riding in a covered carriage, which is described as a canopy top democrat drawn by one horse, which was driven by Bradley. This vehicle had a curtain in the rear, which was down and buttoned. The side curtain of the back section was also down, but. whether the curtains on the forward sections, on the sides, were down or not, was a disputed fact in the case. The men were sitting in the rear seat Evidence was adduced in behalf of the plaintiff to the effect that at a distance of about two hundred feet from this crossing the deceased was seen to be looking towards the east, the direction from which the train came, and that his companion was looking in the opposite direction. There were three houses (two of them owned by the defendant), to the north of the West Shore tracks and on the east side and close to the highway, standing on lots which are each about forty feet wide : and it is shown that these houses in certain places in the highway were obstructions to the clearness of the view of the-railways tracks to the east.

The south side of the house nearest the tracks is shown to be twenty-seven feet from the north rail of the main track and fourteen feet from the north rail of a branch track which extended from a switch which was located six hundred and thirty-eight feet to the east of the crossing to a freight house, which was five hundred and twenty-nine feet west of the crossing. After passing the south line of this house there was an unobstructed view of one mile to the east. The passenger station of the West Shore railroad at Lyons is two hundred and seventy-five feet west of the crossing. The weather was rainy and freezing. The highway was up grade to the south at this point six feet in fifty, caused by changes made by the railroad company in building its railroad. The horse was travelling at about four miles per hour. The speed of the train when it came in collision with the carriage is variously estimated by the witnesses from fifteen to twenty-five miles an hour. It was neither a flag nor a barricade crossing.

A perusal of the testimony satisfies us that it was the duty of the justice at the circuit to submit the two questions, viz., the defendant’s negligence and the plaintiff’s freedom of negligence to the jury for their decision. Upon the subject of the defendant’s negligence the case presents the usual contradictions among the witnesses. But there was sufficient evidence of a direct kind produced to enable the jury to say that the defendant’s employees did not avail themselves of the means of signalling their approach to the highway crossing which they had in their power to do, such as ringing the bell or sounding the whistle of the locomotive. While it is true that the statute making it incumbent upon railroad corporations to sound the whistle or ring the bell at a distance of eighty rods upon approaching a highway, has been repealed, yet, so long as the company has at hand or there are available to it these appliances for giving notice of approaching danger, it is its duty to use them. This part of the case, therefore, was decided by the jury upon sufficient and competent evidence.

In regard to the other question, namely, the freedom of the do- • cedent from any acts which contributed to the production of the injury, the case, except for one very strong circumstance,' would remain in great doubt. With a space of twenty-seven feet where an unobstructed view could be had, it was the duty of the deceased to use his eyes; and so doing, he could not fail to observe the approach of the train, so far as any obstructions appeared outside of those on the railway itself. Nash v. N. Y. C. & H. R. R. R. Co., 125 N. Y., 715; 34 St. Rep., 788.

At this point the evidence is so contradictory that it would seem as if the witnesses, on the one side or the other, had either lost or perverted their memories. Several. pérsons testified that on the side track above mentioned, immediately to the east of • this crossing, stood a train of box cars, the rear end of the west car being about opposite the south-west corner of the house nearest the tracks, and that this constituted a complete obstruction of the view to the east, so that an. approaching train could not be seen; except that, as some of the witnesses stated, the smoke coming from, the smoke stacks'and the' tops of the smoke stacks might be seen. But there is a general concurrence in the testimony in the case, that if these cars were actually upon the tracks at the time of this collision, the failure of the deceased to see the approaching train after he had passed the house nearest to the north track is not only explained, but excused. The evidence given on this subject by the employees of the company, and particularly that 'of the engineer, is that twelve minutes before the collision'he had removed this train of box cars by taking it from the side track across the highway down to the freight'house. Yet there is testimony given by ap- x parently credible men, who examined the locus in quo an hour or an hour and a half afterwards, and who say that they found actually standing there such train of box cars so positively stated to have been there when the deceased attempted to cross the tracks". The presence of these cars at that point after the collision is not only not explained by the evidence given inbehalf of the defendant, but no effort was made to show that they had been drawn back to this place afterwards. There being only eight feet space between the side track and the main track it is evident that, even up to the instant that the horse reached the main track, the box cars obstructed the view and concealed from the occupants of the carriage the approach of the train. Under these circumstances we think the evidence exonerates the deceased from any fault which contributed to his death.

For these reasons the jury was justified in finding the two principal questions against the defendant.

It follows, therefore, that the order denying the motion for a new trial should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.