author: DANIELS, J.:

text:
    EDWARD LANGE, Respondent, v. CHARLES L. BENEDICT, Appellant.

      Unlawful imprisonment — action for, against judge — when not maintainable, although sentence is -unauthorized.

    Tile plaintiff was convicted of a crime punishable by fine OR imprisonment. The United States District Court, over which the defendant presided as judge, imposed both. The plaintiff paid the fine and applied to he released, because he had suffered one of the alternative punishments provided for the offense. The application was denied and the court directed the sentence pronounced to be vacated, and then sentenced the plaintiff to one year’s imprisonment under his conviction (authority to so change the punishment having been previously held by the Supreme Court of the United States to exist). On return to a writ of habeas corpus and a writ of cen'tiorari issued by the United States Supreme Court, the plaintiff was discharged from custody, the court holding that-he could not lawfully be sentenced to imprisonment after what had transpired in the case. The plaintiff thereupon brought this action for unlawful imprisonment. Reid, that it could not be maintained.
    Where, in the course of a judicial proceeding, a judge is required to pass upon a question, the law as to which is in such a condition as to afford ostensible support to each side of the proposition presented, so that different minds might well, and naturally would, be lead to different conclusions as to the proper course to be pursued in disposing of the case, a judge cannot be held personally liable for a decision made by him in good faith, and without malice, even though an appellate court should subsequently reverse such decision, and hold that the judge had no power to render or enforce the same.
    Especially is the judge exempt from personal liability, when his action is founded upon a decision of an appellate tribunal to which, he is hound to conform, affirming the existence of the authority exercised by him in passing the sentence in question.
    Appeal from an order overruling a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

      B. F. Tracy, for the appellant.

      Wm. Henry Arnoux, for the respondent.
   DANIELS, J.:

The action has been brought to recover for the unlawful imprisonment of the plaintiff by the defendant, who is the United States district judge for the eastern district of New York. It appears by the complaint and the copies of the papers annexed to it, showing the proceedings had, that the plaintiff was indicted, tried and convicted at a term of the Circuit Court of the United States for the southern district of New York, held by the defendant, of the crime of larceny, committed by stealing mail bags of the value of less than twenty dollars. By the act of Congress defining the offense and its punishment, that conviction rendered the plaintiff liable to be sentenced to pay a fine not exceeding $200, or, to be imprisoned not exceeding one year. In finally disposing of the case the defendant imposed both these punishments upon him. The plaintiff paid the fine, and applied to be released from custody by means of the writ of habeas corpus because he had suffered one of the alternative punishments provided for the offense. That was denied, and the court, by order entered, directed the sentence which had been pronounced to be vacated, and then sentenced the plaintiff to one year’s imprisonment upon his conviction. He had then been in custody five days, and afterward applied to the Circuit Court of the United States, when the circuit judge, Lewis B. "WoodRuee, the district judge of the southern district, SaMuel Blatcheobd, and the defendant, were upon the bench presiding, for a writ of habeas corpus, to discharge him from further imprisonment because of its illegality. The application was heard, and after being considered, was denied. He then applied for another writ of habeas corpus which, together with a writ of certiorari, was issued by the Supreme Court of the United States. And upon the hearing had on the return made to both writs, the plaintiff was discharged from custody, the court holding that he could not lawfully be again sentenced to imprisonment after what had transpired in the case. (Ex parte Lange, 18 Wall., 163.) After that, this action was brought against the defendant for false imprisonment; and a “very able argument has been made by the learned counsel for the plaintiff in favor of maintaining it. But the report of the case itself, as it was considered and decided by the Supreme Court of the United States, would seem to be sufficient to negative the assertion that such ah action can be maintained upon the facts in the case. The sentence was changed by the same court, at the same term, during which the first sentence was pronounced. And a learned and extended examination by the court of last resort was found necessary, for the purpose of maintaining the position that the change was improperly and unlawfully made. The opinion in which that view was sustained (and it was done by one of the ablest judges of the present time), proved unsatisfactory and unconvincing to two members of that learned court; and its conclusions were combatted by one of those two in an opinion rarely, if ever, excelled in the thoroughness of its investigations and researches, or the vigorous logic used in tracing and exhibiting their results. Under these circumstances, it cannot, with the least propriety, be held that the point presented to and decided by the defendant was not a doubtful one, or that its decision and determination did not require the exercise of judicial functions. The examination and discussion which it received when it was finally decided most conclusively establishes the contrary j and that, of itself, should be deemed to be sufficient to shield the defendant from personal liability. The law was, to say the least, in such a condition as to afford ostensible support to each side of the proposition presented, and to render the development of a satisfactory and consistent conclusion intricate and difficult. Different minds could very well, and would very naturally, be led to different results concerning the propriety of the course pursued in the disposition of the ease by the Circuit Court. Two other judges of great learning and experience in that court held, with the defendant, that the proceedings were not invalid, and the plausibility of their decision was finally corroborated by the opinion of Mr. Justice Oliffobd. If, with that weight of authority in support of the action that was taken, a judge could be held personally liable for its consequences, judicial protection would be at once destroyed, and the utility of the courts in doubtful cases practically subverted. For the result would finally be that all unauthorized determinations arising out of misapprehensions of the law, or miscalculations of the true weight of authority affecting the person, or the property of the defeated party, would furnish a cause of action for trespass or false imprisonment; and no court could possibly be protected against such liability, for even those of last resort not unfrequeutly find it necessary to re-examine, distinguish, and finally overrule their own decisions. And it certainly is no discredit to the learned tribunal, by whose mandate the plaintiff was set at liberty, to say that it has not always found itself at liberty to disregard that alternative. The law is the most complicated of all practical sciences, and it cannot fail to become more so, as the intricacies of business and enterprise increase and advance. Differences of opinion upon legal subjects cannot be avoided even by the most patient attention and laborious investigation; and when they do arise, erroneous conclusions are required to be excused as the natural consequences of human fallibility. When a party has been brought before a court of justice in a legal manner, and circumstances are presented requiring a decision affecting him to be made, the tribunal making it cannot be deprived of protection, because it may afterwards, upon further and fuller investigation, turn out to have been erroneous. That was the case of the plaintiff. He had been convicted of a crime punishable by fine or imprisonment. The court inadvertently imposed both. When its consideration was directed to the misapprehension under which the sentence had been pronounced, an effort was made to correct it in such a manner as to comport with what was considered to be just in the case. And that correction, it was held, could be and was designed to be made. The emergency which had arisen required a decision concluding-the power of the court. The judge could neither avoid making it nor escape from it. His duty required him to act, and he had the power to decide, and did so accordingly, to the best of his judgment. And for that he cannot, upon any sound principle of accountability, be held to be personally liable. He had for that purpose, j urisdiction of the person and the subject-matter. Both were before him, and his decision was necessary. He could not avoid making it if he would. And as it turned out he decided erroneously. The rule by which judicial officers have been exonerated from liability for the consequences of their decisions, has gone much farther than is required under the circumstances for the protection of the defendant. In Yates v. Lansing (5 Johns., 282), the assertion was approvingly mentioned, “ that no authority, or semblance of an authority, had been urged for an action against a judge of record, for doing any thing as judge; that this was never before imagined, and no action would lie against a judge for a wrongful commitment, any more than for an erroneous judgment.” (Id., 294.) And that principle was affirmed afterwards in the same case by the Court of Errors. (9 id., 396.) And to the same effect are Jenkins v. Waldron (11 id., 114); Vanderheyden v. Young (id., 150); Wilson v. Mayor of New York (1 Denio, 595); Weaver v. Devendorf (3 id., 117); Bradley v. Fisher (13 Wallace, 335). In the case of The Rochester White Lead Co. v. City of Rochester (3 Com., 464), it was said that, “whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depend upon his own judgment, he is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed.” (Id., 466.) To secure this immunity, it is sufficient that a case requiring judicial action is presented to the judge. (Harnan v. Brotherson, 1 Denio, 537; Landt v. Hilts, 19 Barb., 283.) But the defendant’s right to exemption from personal liability in this case, rests upon still more cogent circumstances than those already relied upon. For the decisions of the United States Supreme Court, to which he was bound to subordinate his action, had previously affirmed the existence of the authority which he exercised in changing the punishment. (Cheang-Kee v. U. S., 3 Wallace, 321; Basset v. U. S., 9 id., 38.) In the last case the person proceeded against had pleaded guilty to an indictment, and had been sentenced to imprisonment and was actually sent to prison in pursuance of the sentence. A few days after that he was brought again into court by means of a writ of habeas corpus, and on the district attorney’s motion the judgment was set aside, and the prisoner had leave to withdraw his former plea of guilty. This was all done during the same term, as it was in the case of the plaintiff, and the court unanimously beld it to be proper. It was not held so because the proceeding was favorable to the defendant, but for the sole reason that during the same term the court had full power to control and change its judgments. And that subject was very fully discussed, and the authorities cited upon which the principle rested, by Mr. Justice Cliffoed in his opinion in Ex Parte Lange (18 Wallace, 191-195). And a decision of the same nature was made after the execution of the sentence had commenced, by reducing the term for which transportation had been provided, in the case of Rex v. Price (6 East, 323, 327). The Circuit Court had no power, even if it had the disposition, to gainsay or deny the accuracy of the legal principle sanctioned by the ease of Bassett v. U. S. (supra). It not only had the power, but it was bound to conform its action to the principle maintained by that authority. That was as obligatory upon the defendant at the time as positive legislation would have been. And he appears to have acted under its sanction. At that time his action was strictly'lawful, and it cannot be denied that the authority of that case then afforded him complete protection for the change made in the sentence, and it would probably be conceded to continue to do so, had it not been since impaired as authority by the final decision made for the plaintiff’s liberation. Under the doctrine of that case the defendant was vested with clear jurisdiction over the subject-matter brought before him, and it at the same time indicated the manner in which it should be exercised by him. That it was, as the learned justice stated in his opinion in the plaintiff’s favor, it had been decided “ in general terms, without much consideration” (18 Wallace, 167), could not change its effect as authority at the time when it was followed by the Circuit Court. The defendant presiding there coirld not then, with the least propriety, have assigned that as a reason for disregarding it as authority. The decision was then in full force as it had been made. It was promulgated by the court in its published reports as a proper exposition of the law, and it would be exceedingly unjust under such circumstances, to render the defendant’s protection dependent upon the. views afterwards taken to correct it by the court that had pronounced it. That tribunal could correct it, as it has, when it was discovered to be wrong, but he had no such power over it. It was his duty to conform his official action to it, and for that it cannot be that he can be held personally liable, because the authority of the decision has since been superseded by another. His conduct, on the other hand, should be so far sustained as to secure him immunity, the same as it would have been if a statute had existed in favor of it, which the legislature afterwards repealed. For future purposes the repeal obliterates the law, the same as though it had never been enacted. But acts previously performed are afterwards maintained by force of the law which sanctioned them, at the time of their occurrence. This principle is too familiar to require the citation of authorities for its support, and all its reasons are applicable to the case now before this court. The principle invoked for the support of this action would sanction suits against judges for their official acts in a large class of cases, if it should receive the approval of the courts. It would be difficult to exclude from its comprehension any cases where imprisonment should be pronounced or continued, which might afterwards be declared to be unwarranted by the final view taken of the law. No authority has gone so far as that, and it is not probable that any will be hereafter so widely extended. The settled principle on the contrary is, that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence, without which no judiciary can be either respected or useful.” (Bradley v. Fisher, supra, 347.) The defendant cannot be held liable for the consequences of the imprisonment following the change made in the sentence. He acted judicially in making it. The exigency required him to decide, and that included the power to decide wrong without liability to himself, particularly as it practically required the abrogation of an existing, and, for the time, controlling authority, to render the error apparent. It is entirely evident that he was actuated solely by the motive of performing his duties for the best interests of the public, by subjecting the plaintiff to what was believed to be no more than a proper measure of punishment, for the offense of which he had been convicted. That he considered his acts to be fully warranted by the decision of the tribunal from which he was bound to receive the law, is clearly shown by what the case shows to have transpired, and in that view he was supported by other eminent judges. To hold him liable for a change afterward made in it, would seem to be hardly less than a positive perversion of justice. That he cannot be held liable for the five days’ imprisonment under the sentence, as it was at first pronounced, follows from the view which was adopted in the decision of the habeas corpus. For it was then distinctly held, that “ the judgment first rendered, though erroneous, was not absolutely void. It was rendered by a court which had jurisdiction of the party and of the offense, on a valid verdict. That error of the court, in imposing the two punishments mentioned in the statute when it had only the alternative of one of them, did not make the judgment wholly void.” (Ex parte Lange, 18 Wall., 174.) And as the defendant had the same jurisdiction over the subject when the plaintiff’s first sentence was vacated, and the last one was pronounced, he is equally entitled to the same protection as to this portion of the case. The sentence, under the circumstances, was not void. It was simply voidable by the operation of the restriction subsequently imposed upon the principle established by the case of Basset v. United States (supra), and that effect was first given to it long after the power of the defendant’s court had been exhausted. The order should be reversed, and an order entered sustaining the demurrer, with the usual leave to the plaintiff to amend, on payment of costs.

Beady, J., concurred. Davis, P. J., taking no part.

Order reversed, and order entered sustaining demurrer, with usual leave to plaintiff to amend on payment of costs.


source: Caselaw Access Project

license: Public Domain

text:
    EDWARD D. GALE, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Wm York charter — $ 96, eJiap. 885 of 1873 — Attorney for collection of pet'sonal taaxs — right of, to costs.

    Under section 96 of Die charter of the city of New York (chap. 335 of 1873), providing that no officer of the city government shall receive any fees, perquisites or commissions, or any per centage, hut that every such officer shall he paid a fixed salary, the attorney for the collection of personal taxes is not entitled to retain the costs recovered in actions brought hy him, hut must pay the same over to the city.
    The provision of the said section, that every officer who shall receive any money which should he paid over to the city shall, before he shall he entitled to receive any salary, make a return to the comptroller showing the amount thereof, applies only to the officers themselves and not to their assistants or subordinates.
    Accordingly, in an action brought hy the assistant to the attorney for the collection of taxes to recover his salary, held, that the fact that he had received and still held costs, which belonged to the city, did not constitute a full defense to the action, hut only authorized the deduction by the city of such amount from what was due to the plaintiff.
    Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury.

      Frcmcis Lynde Stetson, for the appellant.

      G. A. Setvard and Geo. W. Wingate, for the respondent.
   DANIELS, J.:

The verdict and judgment were in part recovered in this case, for the amount claimed by the plaintiff, as assistant clerk to the attorney for the collection of personal taxes. His salary in that capacity was $2,000 per annum, $1,000 of which, for the period between the 1st of March and the 1st of September, 1S75, was unpaid. He was then appointed to the office of attorney for the collection of personal taxes, the yearly salary of which, in the complaint, was alleged to have been $7,500, and that was not denied by the answer. And the plaintiff also recovered the four monthly installnaents accruing between the 1st of September, 1875, an,d the 1st of January, 1876. While he acted as assistant clerk, and after the decease of the attorney himself, the plaintiff received certain costs, of which a balance of $286.50 remained in his hands at the time of the commencement of this action. And it was objected by the defendant that he should be precluded from recovering either of the demands asserted by him, because he had not reported or paid over that balance. In his behalf it was insisted that the balance was not the property of the defendant, but belonged to and was held for the widow of the attorney, to whom he had been appointed assistant clerk.

When the office of attorney for the collection of personal taxes was created, it was provided that the officer should be paid a salary, to be fixed by -the board of supervisors, and in addition to that salary he should also receive the taxable costs allowed against and collected from the adverse parties. (Laws of 1867, vol. 1, 752, § 8.) What the salary was, which was fixed by the supervisors, was not shown in the case. At the time of its creation, the office was made a bureau in the finance department of the city. (Laws 1867, vol. 1, 750, § 1.) Rut it was afterward added to the law department. (Laws 1873, 495, § 36.) And it was then provided, that no officer of the city government, except the city marshals, shall have or receive, to his own use, any fees, perquisites or commissions, or any per eentage, but every such officer shall be paid by a fixed salary and all fees, per centages and commission received by any such officer shall be the property of the city. (Id., 509, § 96, 112 6 § 16.) It has been urged that the terms fees, perquisites, commissions and per eentage, used in this section of the statute, do not include the costs recovered in an action against the adverse party, and accordingly that the preceding provision made by the act of 1867 still continues in force, giving such costs to the attorney for collecting personal taxes, when they accrue in actions prosecuted by him. And that construction might, perhaps, be properly given to them if they were unaffected in their meaning by any thing else contained in the act. But they were not left in that condition. They were followed by the declaration that every such officer, that is, every officer of the city government, shall be paid by a fixed salary. And that could not very well be the case if the salary was liable tq bp increased or diminished by the amount of costs collected in actions prosecuted officially by the attorney. The provision made was very general, that all officers of the city government, except marshals, should be paid by fixed salaries. No exception was made or intended, as there should have been, if legal costs were not designed to be included within the signification which the terms fees and perquisites were intended to have. The section must be construed together, so that both the results contemplated by it shall be secured. That requires that the salaries of all the officers of the city government shall be fixed, and that the fees and emoluments of the office, resulting from the discharge of the duties of the officer, shall belong and be paid over to the city.

The' balance shown to have been in the plaintiff’s hands was not received by him as one of the officers mentioned in this section of the statute, but as the assistant or subordinate of such an officer. For that reason the retention of the money could not be a full defense against the unpaid salary, for the plaintiff was not then one of the officers subjected for that act to such a result by this section of the act. It was the officer himself, and not his subordinate, who was required to make out the return and pay over the money, and precluded from a recovery of this salary until that duty should be performed by him. The plaintiff held the balance which he had, only as so much money received by him for the use of the city. It was the property of the city, and he was liable to account for it, the same as any other officer or agent would be for corporate property received by him, and for that reason it should have been deducted from the amount claimed by him at the trial.

The evidence showed that nothing had been received by him to which the defendant could make any legal claim after his appointment to the office itself. There was, therefore, no defense to that portion of the recovery which included his salary from the 1st of September, 1875, to the 1st of January, 1876. The only error appearing in the case is that by which the deduction of the balance in the plaintiffs hands, as assistant clerk, was not made from the amount of his salary. To correct that, the judgment must be reversed and a new trial ordered, with costs to the defendant, to abide the event, unless, within twenty days after notice of this decision, the plaintiff shall stipulate to deduct $286.50, with interest thereon during the time the money has been in his hands, from tbe amount.of the verdict. In case such deduction shall be made, then the judgment as so reduced will be affirmed, without costs to either party on this appeal.

Present — -Davis, P. J., Daotels and Beady, JJ.

Judgment reversed, new trial ordered, costs to defendant to abide event, unless within twenty days after notice of decision, plaintiff shall stipulate to deduct $286.50, with interest during the time the money has been in his hands, from the amount of verdict, in which case judgment as reduced affirmed, without costs to either party on appeal.


author: Daniels, J. :

text:
    SYLVESTER W. COMSTOCK, Respondent, v. HELEN E. DROHAN, Appellant.

      Assumption of mortgage by grantee — right of grantor — Judgment-roll in foreclosure against grantor — Evidence against grantee, although not 'notified of action — Costs.

    Tlie plaintiff conveyed a lot to tie defendant subject to a mortgage, which the latter assumed and agreed to pay. In an action to foreclose the mortgage, to which the plaintiff, but not the defendant, was made a parly, a judgment for deficiency was entered against and subsequently paid by the plaintiff. In an . action brought by him to recover the amount so paid, held, that section 158 of 2 Revised Statutes (Edm. ed.), page 199, providing that no proceedings shall be had at law for the recovery of a debt secured by a mortgage after a decree has been entered in an action to foreclose the same, unless authorized by the court, did not apply to an action upon a covenant such as formed the subject of the present action.
    The object of that provision was to limit a party attempting to enforce the collection of his debt by the foreclosure of a mortgage to that proceeding, unless good cause could be shown why resort should also be had to an action at law.
    Although the defendant was not a party to the foreclosure suit, the judgment recovered therein was competent evidence in this action to show the amount of the mortgage debt, the sale of the property, and the amount of the deficiency.
    It was not necessary for the plaintiff to give notice to the defendant of the pend-ency of the foreclosure suit. ¡Where one person has become obligated to protect another against the consequence of his or her default in payment, a judgment regularly recovered against the party entitled to such protection is prima facie evidence of the facts established by it in his favor, in an action against the person bound to make the indemnity.

      In this action, Jield, that the plaintiff was entitled to recover the amount of the judgment paid by Mm, and that the costs and expenses of the foreclosure suit should be deducted from the amount realized upon the sale of the property.
    MotioN by defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.

      Palmer & De damp, for the appellant.

      F. H. Qomsioek, for the respondent.
   Daniels, J. :

The plaintiff owned a piece of land situated in the city of Brooklyn which was incumbered by a mortgage, he had become liable to pay. On the 28th of March, 1869, he sold and conveyed the land to the defendant, and inserted in the deed the following clause: “Subject nevertheless, to a certain mortgage made by Mary I. Treadwell and Thomas H. Treadwell to Albert Woodruff, to secure $3,000, and interest, and recorded in said register’s office in liber 728 of mortgages, page 157, October 10, 1867, which said mortgage the party of the second part hereby assumes, and agrees to pay, the same forming a part of the consideration money herein-before expressed, and having been deducted therefrom.” The effect of which, between the plaintiff and the defendant, who were the parties to the deed, was to render the defendant primarily, as well as personally, liable for the payment of the mortgage debt. • And as to her, the plaintiff continued liable for it after that only as her surety. (Burr v Beers, 24 N. Y., 178 ; Rubens v. Prindle, 44 Barb., 336 ; Johnson v. Zink, 52 id., 396.) The defendant failed to pay off the mortgage, and so did her grantee. For that default an action was brought by the assignee of the mortgage for its foreclosure and a sale of the property mortgaged. The plaintiff was made a defendant in the action, but the present defendant was not. Judgment was recovered in the usual form for a foreclosure of the mortgage and a sale of the premises. The amount realized by the sale was not sufficient to satisfy the mortgage debt, and a personal judgment was entered upon the confirmation of the report of sale, against the plaintiff, which he afterwards paid ; and to recover the amount paid, he then brought this action against the defendant. The issue joined in the action was tried at the Circuit, and a verdict directed in his favor against her for that amount.

After the opening of the case on the part of the plaintiff, the defendant’s counsel moved for a dismissal of the complaint, “ on the ground that the plaintiff does not show that he is in a position to sue for and recover any deficiency upon the foreclosure suit, or that he has any right to the money upon this mortgage, without placing the defendant in a position whereby she could have the benefit of the mortgage.” And the same application was renewed and denied at the close of the plaintiff’s proof. This statement was in no way suggestive even, of the- objection now chiefly taken to the decision of the court. It was not claimed by it that the action was prosecuted in violation of the provision of the statute, declaring that no proceedings whatever shall be had at law for recovery of the debt secured by the mortgage, unless authorized by the court, after a decree had been rendered in the foreclosure case. (2 R. S., Edmonds’ ed., 199, § 153.) But if it had been taken it could not possibly aid the defendant in resisting a recovery in the present action. Eor the statute has no application to an action upon a covenant of the nature of that contained in the deed to the defendant by the grantor, after the payment of the deficiency by him. Its object was to restrain proceedings at law for the collection of the mortgage debt by the party endeavoring to enforce it, by an action for its foreclosure, in which all the relief he might be entitled to could be secured without subjecting the debtor to another action. (Suydam v. Bartle, 9 Paige, 294.) And not to prevent a party who had been compelled to pay the debt, either wholly or partially, from maintaining an action for his reimbursement against another who had become liable upon an independent agreement to indemnify him. That was the nature of the - obligation entered into by the defendant with the plaintiff. She agreed to pay off the mortgage debt, and by necessary implication to indemnify him against the legal consequences of her failure to perform the agreement. When she failed to pay, and it was paid by him on the judgment recovered against him for the deficiency, it was so much money paid for her use, and which he.was entitled to recover against her. The statute never was designed to reach a case of that kind, but to limit the party prosecuting an action to foreclose the mortgage to that proceeding, unless good cause could be shown for relief from the statutory restraint.

The proceedings and judgment in the foreclosure case were received in evidence to show the amount of the mortgage debt, the sale of the property and the amount of the deficiency. That was objected to and is now insisted upon as erroneous, because the defendant was not a party to that 'action, and had no notice of its pendency. Evidence was given tending to show an informal notice of the pendency of the action to the defendant’s husband as her agent. But it was denied by him, and if notice was necessary, the court could not, on that state of the proof, take the decision of the point from the jury and decide the controverted fact itself. The ruling of the court must have proceeded upon the theory, that notice to the defendant of the pendency of the foreclosure suit was not necessary in order to entitle the plaintiff to read the judgment roll in evidence. And as she was bound to indemnify him against the legal results to him from her default in payment, that ruling was correct. Eor where one person has become obligated to protect another against the consequences of his or her default in payment, a judgment regularly recovered against the party entitled to such protection is prima faoie evidence of the facts established by it in his favor in an action against the person bound to make the indemnity. The point was examined, and this result maintained, in the case of Bridgeport Fire Ins. Co. v. Wilson (34 N. Y., 275, 279-281), and it was approved and applied in Konitzky v. Meyer (49 id., 571, 573, 574, 576); O’Brien v. McGann (58 id., 373, 376), and to the same general effect are the cases of Train v. Gold (5 Pick., 380); Leather v. Poultney (4 Binney, 352); Carmack v. Com (5 id., 184); Munford v. Overseers (2 Rand., 313, 318, 319); Jacobs v. Hell (2 Leigh, 393, marginal paging); State v. Colerick (3 Hammond, 487); Clark v. Carrington (7 Cranch, 308). The objection taken to the record and proceedings in the foreclosure suit was properly overruled, and they sufficiently established the defendant’s default, and the amount he was charged with and afterwards paid by reason of it. And no evidence to the contrary was even proposed to be given on the part of the defendant.

It was objected on her part, that the costs and expenses of the action to foreclose the mortgage could not be allowed against her to reduce the proceeds of the sale of the property because she was not made a - party. And reliance has been placed upon the cases of Peabody v. Roberts (47 Barb., 92), and Gage v. Brewster (31 N. Y., 218), as supporting that position. But as they considered only the rights and liabilities of a party in an action to redeem, not included in the action to foreclose, they do not sustain that point. An incumbrancer, not a party to an action for the foreclosure of a mortgage, is not foreclosed or affected in any respect by the proceeding. For that reason his obligations, in the way of payment, cannot be increased by imposing the cost and expense of it upon him. But in this case there was no other way by which the property could be applied to the payment of the debt, and the' partial extinguishment of her obligation. It was a necessary result of her default in not paying as she had agreed to do with the plaintiff. Her agreement was, in effect, one which bound her to indemnify him against the consequences of her default. And these costs and expenses, which were deducted out of the proceeds of the sale, were made by reason of it. The plaintiff was obliged to allow them because of her default in payment, and he cannot be protected and indemnified as he was entitled to be under her agreement with him, by rendering him responsible for them. (N. Y. State Marine Ins. Co. v. Protection Ins. Co., 1 Story, 458 ; Smith v. Compton, 3 Bar. & Adol., 407; 23 Eng. C. L., 106.) The motion for a new trial should be denied, and judgment on the verdict directed for the plaintiff.

Davis, P. J., and Brady, J., concurred.

Motion denied, and judgment on verdict directed for plaintiff.


text:
    EDWARD SIMON and others, Plaintiffs, v. CLEOPHAS HUOT and others, Defendants.

      Promissory note — Garnishment process — effect of on rights of hona fide purchaser:

    The laws of Florida provide that in any action commenced therein a notice of garnishment may be issued to any person indebted to the defendant in said action, requiring him to state the amount of his indebtedness at the time of the issuing of the summons, and authorize a judgment to be entered in favor of the plaintiff for the amount of such indebtedness, if it be admitted, and an execution to be issued thereon. Reld, that these provisions included all debts without regard to the form in which they were contracted, and that they were applicable to negotiable paper.
    Accordingly where, in an action upon a promissory note, made and payable in that State, brought by one who had purchased the same in this State, without notice and for full value, it appeared that while the payee still owned the note an action had been commenced against him, in which, after due service of notice of garnishment on the makers, judgment had been entered against them for the amount thereof, and their property had been seized under an execution issued thereon, held, that the court erred in directing a verdict for the plaintiff.
    Motion by defendants for a new trial, on exceptions ordered to be beard in the first instance at the General Term.

      B. F. Watson, for the plaintiffs.

      John Ewing Wrisley, for the defendants.
   Daniels, J. :

The plaintiffs as the indorsees, for value without notice, of a promissory note, were allowed to recover the amount due upon it at the trial, by the direction of the court, and the exceptions taken to that direction, and to the refusal to direct a verdict for the defendants, were ordered to be first heard at the General Term, and judgment in the meantime was suspended. The note was made by the defendants who were then residents and citizens of the State of Florida, on the 8th day of September, 1873, and by its terms they promised to pay to the order of Louis Sylvester $1,655.97, at their office for value received, in twelve months after date. The plaintiffs received the note from the payee properly indorsed by him, on the 9th of June, 1874, for the purchase-price of goods sold and delivered by them to him, and amounting to the sum unpaid by its terms.

Both the complaint and the answer of the defendants averred that the note was made by them, and delivered to Sylvester, the payee, at Fernandina, in Florida, and it was payable at the defendant’s office in that place. After the making and delivery of the note and on the 3d of March, 1874, an action was commenced by Charles B. Ely and others against Sylvester, the payee, in the Circuit Court of the fourth judicial circuit of that State, for the recovery of a debt claimed to be owing from him to them. The court had jurisdiction over the action and the summons in it was served personally on the defendant on the next day. At the time of the commencement of the suit, upon a proper affidavit and bond, an application was made for an attachment against the debtor, and a writ of garnishment against Huot, Kelly & Co., the present defendants, as persons who had property, money and effects in their hands belonging to Sylvester, the debtor. That writ, as well as the attachment, were issued, and the writ was served on these defendants on the 3d of March, 1874, the day on which it issued. They appeared, as it required them to do, and filed their answer in which, among other things, they set forth the making and delivery of the note in suit, and stated that it was then still held by Sylvester, which appears to have been the fact. The action proceeded to judgment against Sylvester on the 16th day of May, 1874, and against the makers of the note on the 29th of October, 1874. By the judgment against them they were adjudged liable to pay the plaintiffs in that action the sum of $1,762.06, besides five dollars and fifty cents costs, and that payment was required from them, by reason of their liability to Sylvester, upon the note received by the plaintiffs, for the other note made by them was shown to have passed out of his hands before the proceedings against them were instituted. Upon this judgment execution was issued on the 3d of December, 1874, and levied upon the defendants’ goods. But at their instance the goods were released, and a levy made upon real estate owned by them in lieu of the goods, and the proceedings remained in that condition when this action was tried, it having been commenced in October, 1874. The court held that these proceedings, although taken in conformity to the statute of Florida, constituted no defense to the plaintiffs’ action upon the note; and whether it was right in that position is the important point now required to be considered and decided by this court.

As the note was made and delivered, and was also payable in Florida, its effect as a contract depended, as far as they had been enacted upon the subject, on the laws of that State. And by those laws, as they were proved upon the trial and appear in the case, any person indebted to a defendant proceeded against was rendered liable to be summoned to appear and state on oath, in writing, whether he, she or they were indebted to the defendant, and in what sum, at the time of the service of the summons. And when the garnishee confessed the indebtedness, as that was done by the answer filed by the defendants, then it was provided that if the plaintiff should be “ satisfied with the statement, admission, confession, or discovery, the court shall -award judgment against said garnishee for the amount so confessed, and execution may issue for the same against said garnishee.” These provisions included all debts, without reference to the form in which they were contracted, and for that reason were applicable to the note in suit. It was sufficient for the application of the statute, that the party proceeded against was in fact indebted to the defendant in the action, at the time when the proceedings were taken, and how the debt was created or by what instrument it may have been evidenced, was, therefore, not an important consideration. The liability depended on the existence of a debt, not on the form of the obligation taken for it. And for that reason to that extent it necessarily qualified the negotiability of commercial paper made and delivered within the State of Florida, and rendered the debt for which it should be given liable to be applied in payment of debts against the holder, as long as the paper continued in his hands as his property. It was not relieved from that liability by the circumstance that it was not due, and might afterwards be negotiated by the holder having possession of it, to an innocent purchaser. That was a contingency for which no provision was made by the statute. The right of the creditor to have it appropriated to his payment was made complete, by reason of the circumstance that the debt was owing to the debtor; upon that the statute intervened for the protection of the creditor, and rendered his right to sequestrate the debt absolute. It looked no further, and did not undertake to guard against the ulterior consequences which might have been expected to arise from a subsequent unauthorized negotiation of the paper. Legislation of this general nature affecting the negotiable qualities of commercial paper is not uncommon, and to some extent it has been enacted in this State, rendering such paper void in the hands of even innocent holders, when made in contravention of its provisions. That is the case as to betting, gaming, usurious and other transactions forbidden by law.

The holder of the note though shown to reside beyond the limits of the State was actually within it, and so was the note, when the action against him was commenced, and the process issued for that purpose was personally served upon him. By that service, and the service of the summons upon the present defendants, complete jurisdiction was acquired over the subject-matter and the parties to the action, and the note in suit was subjected to the power and authority created over it by the statute. And whoever purchased it afterwards from the defendant Sylvester took it as it was affected by the proceedings taken, and subordinated to that authority, even though that rule would not ordinarily be applied to the holder of negotiable paper. (Leitch v. Wells, 48 Barb., 641, 649; Hopkins v. McLaren, 4 Cowen, 667-678, 679; Story on the Conflict of Laws [5th ed.], §§ 548, 551.)

A similar point, under circumstances less favorable to the defendants, arose in the case of Hull v. Blake (13 Mass., 153), where like proceedings which had been prosecuted in the State of Georgia were held to be a bar to an action brought upon notes by a tona fide holder for value, who received them before they were due. In the course of the decision of that case, after holding' that the notes derived their validity as contracts from the laws of the State of Georgia, it was further held by Paexee, C. J., and concurred in by the court, that if by the laws of the State of Georgia, in force when these notes were given, they might be discharged by a payment to the original promisee after they were indorsed, and such payment had been actually made, proof of these facts would secure the defendant from a second payment, although it should be demanded by an indorsee who had paid a valuable consideration, and who must in that case be considered as relying upon his indorser if he should fail in recovering the amount from the promissor. A law providing that any creditor of the promisee may compel the promissor to pay the debt to him, ■ notwithstanding the evidence of its negotiable quality and that it may have been actually negotiated, would have the same effect. Such a provision would be extraordinary and contrary to the effect generally given to negotiable securities in any mercantile country; but, if the law be so, it must have operation on the contract wherever it may be sued, because the laws of the place where the contract is made necessarily make a part of the contract, and are understood as its governing principle.” (Id., 156.) The same point was again examined and considered by that court (Meriam v. Rundlett, 13 Pick., 511), and the preceding decision was approved. But as other property had also been rendered liable to the payment of the judgment, and that of the debtor himself was required to be first exhausted and applied in payment of the judgment, the court held the proceedings which had been taken in the State of Missouri to be a defense only by way bf abatement or suspension of the action, until it could be seen whether the makers of the note would be obliged to pay the amount of it there. The same general principle as that which was held in Hull v. Blake was maintained in Holmes v. Remsen (20 Johns., 229), but there the debt was not negotiable, and actual payment had been enforced. Also, in Embree v. Hanna (5 id., 101), where a debt of the same nature had been attached in another State. A like-effect was given to a similar principle in Trubee v. Alden (13 S. C. N. Y. [6 Hun], 15). See, also, 2 Parsons on Bills and Notes, 386-390, where the authorities affecting the exoneration of the makers under circumstances like those presented in this case have been collected and discussed, and the conclusion of Hull v. Blake sustained. Also, volume 1, 260, where it is stated as the law that, if the defendant is compelled by due process of law to pay the note to another party, the plaintiff who holds the note cannot recover it of him. Thus, if the paper be not negotiable, and trustee process is served upon the promissor, or if the paper be negotiable, and such process is served in States where it may be served in such cases, the promissor must pay the plaintiff in the trustee process, and this would be a defense if sued by the holder.” (2 Parsons on Cont. [6th ed.], 606-608.) That is the necessary effect of the judgment in the State in which it may have been recovered, and under the Constitution of the United States, it is entitled to the same faith and credit from the courts in the other States. (Wheeler v. Raymond, 8 Cow., 311.)

By the judgment of the court recovered in Florida, the defendants were unqualifiedly required to pay the amount of the note to the plaintiffs in that action. No such contingent liability was created as appeared in Meriam v. Rundlett (supra); and besides that, execution had been issued and properly levied upon under it, which was probably sufficient to satisfy the judgment. The principal defendant was not a resident of the State, and did not appear to have any other property than this debt within it and subject to the process of its courts; and for those reasons, under the authority of Hull v. Blake (supra), a complete defense was shown to the action. But if the contingency that Sylvester might still pay the judgment is entitled to weight in the consideration of the case, the proceedings taken required an abatement or suspension of the action until that should be determined, and that was sufficient to render the direction of a verdict against the defendants as the makers of the note erroneous.

It has been urged that those proceedings should- be denied effect, as collusive, because of the change made in the property levied upon, and the return of the note by defendants to Sylvester two days after the service of the writ of garnishment. But as the change in the levy in no way released the defendants or their property from the payment of the judgment against them, and it did not appear that they could have lawfully withheld the note, it having been pledged to them for a special purpose only, it cannot, with any degree of propriety, be now held that the proceedings were collusive for those reasons. That may be made to appear upon another trial of the action by evidence which will justify the jury in adopting that view of the proceedings. But as they now appear to stand, they are not sufficient to prevent a recovery 'upon the note by the plaintiffs.

There should be a new trial of the action, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Motion for new trial granted, costs to abide event.


author: Daniels, J.:

text:
    JOSEPHINE RUGEN and HERMANN RUGEN, Respondents, v. CATHARINE E. COLLINS and MARIETTA COLLINS, an Infant, Impleaded with others, Appellants.

      Costs — Conflicting dawns to real, property — Code, § 449.
    Where, in an action brought in pursuance of section 449 of the Code, to determine conflicting- claims to real property, the plaintiffs’ complaint is dismissed, the defendant is entitled to costs, as a matter of right, and the court cannot prevent his recovering the same.
    Appeal from so much of a judgment dismissing tbe plaintiffs’ complaint as denied costs to the defendants, and from an order denying a motion made by them for the allowance of costs.

      J. H. Whitelegge, for the appellants.

      Samuel Wood, for the respondents.
   Daniels, J.:

This action was brought for the determination of conflicting claims to a parcel of real estate. It was tried, by consent, before the court, without a jury, and the complaint dismissed, without costs, because it failed to state facts sufficient to constitute a cause of action. And the defendants have appealed from the part of the judgment depriving them of their costs, claiming that their right to recover them was, in no respect, subject to the discretion of the court.

In that view they also presented a bill of costs to the clerk for adjustment, which was rejected by him. And from his decision they appealed, by way of motion, to the Special Term. The same disposition was there made of their bill, and from the order then made they have appealed to this court. These decisions of the clerk and of the motion by the Special Term, were clearly correct in point of practice, even if the portion of the judgment appealed from shall prove incapable of being sustained. For, as long as that continued in force, and unreversed, it had the effect -of depriving the defendants of their costs, and, even if it had been erroneously directed, it could not be corrected in a collateral proceeding like that, resorted to by the defendants, for the allowance of their costs. If any error had intervened, by which the defendants were deprived of their costs, it could only be .corrected by a vacation of that portion of the judgment, or in a direct proceeding, by way of appeal, for the purpose of reviewing it. Neither the clerk nor the Special Term had any power over the decision, and, consequently, could not disregard it.

But in the appeal from the judgment the question is directly presented, whether costs were properly denied. Before 1849 the subject-matter of the action required only a special proceeding, for its prosecution and determination. But in that year it was provided that the rights of the parties to such a controversy might be enforced by an action. (Code, § 449.) That made no other change than to constitute it the proper subject of an action. It left the rights of the parties in all other respects within the control of the preceding provisions of the law. That resulted from the language used in the enactment of the section, as well as from the circumstance that none of those provisions were changed or repealed by it. The simple power alone was created of compelling the determination of the conflicting claims by action.' And when it should be done, it was required tobe “pursuant to the provisions of the Revised Statutes.” And by an amendment to those statutes made by chapter 511 of the Laws of 1855, it was declared that the issues formed should be tried in the same manner as issues in other personal actions and the successful party entitled to judgment for such relief as he could recover, with costs as in other personal actions under the Code. (Laws of 1855, chap. 511, § 4.) This was in terms an amendment of the provisions contained in the Revised Statutes, requiring the proceeding to be commenced by a mere notice. But from the language used by section 449 of the Code it was made equally applicable to an action instituted for the same purpose, for it provided that the action should be prosecuted pursuant to the provisions of the Revised Statutes. And it could not consistently have been designed that costs should be awarded when the proceedings were commenced by a notice and denied when the same right was enforced by action. The right to costs was provided by the Revised Statutes as amended by the act of 1855, and it was to be alone pursuant to such provisions that the action could be prosecuted under the Code. It was simply in the form of the proceeding that a change was made, not in the rights or obligations of the parties to it. They were intended to be the same in the action as they would be if a notice instead of a summons were made use of for the purpose of commencing them.

The right to costs was also secured by the provisions of the Code applicable to all civil actions, which since 1849 included an action to determine conflicting claims to real estate. For when this action was tried they gave the plaintiffs costs of course, when a claim of title to real property arose upon the pleadings, and in actions of which a court of a justice of the peace had no jurisdiction ; and an action of the present description was comprehended by both these provisions. For a claim of title to real property did arise upon the pleadings, and it was an action which could not be commenced or prosecuted in the court of a justice of the peace. If the plaintiffs had recovered judgment they would consequently have been entitled of course to their costs; and where that is the case, the next section secures the same right and one as absolute in its form to the defendants when they succeed in the action.

Whether the ease be considered as being within the control of the provisions of the Revised Statutes, as they have been amended by the act of' 1855, or those of the Code which are applicable to civil actions, the right of the defendants was complete to their costs upon the dismissal of the plaintiffs5 complaint, and the court could not properly prevent their recovery by any direction to that effect given in its judgment. It is only in another class of actions that a discretion over the subject of costs has been conferred upon the courts. (Code, § 306.)

The order appealed from denying the defendants’ motion should be affirmed, with ten dollars costs besides disbursements; and so much of the judgment as dismissed the plaintiffs’ complaint without costs should be reversed. That will leave the complaint dismissed unqualifiedly, and entitle the defendants to their costs of the action and on the appeal from the judgment, to be adjusted in the usual way.

Davis, P. J., and Ready, J., concurred.

Order denying the defendants’ motion affirmed, with ten dollars costs and disbursements; and so much of the judgment reversed as denies costs to defendants, and costs are allowed to the defendants in the action and on the appeal.


author: DaNiels, J.:

text:
    WILLIAM WALSH, Respondent v. JANE C. MEAD, Appellant.

      Improper construction of building, causing snow to fall from roof — liability of owner for mjw'ies resulting from.— negligence — Landlord and tenant — covenant to

    Where the roof of a building, in a large city, is so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk, and there is no adequate guard at the edge to retain it, it is, in judgment of law, a nuisance. Where one passing upon the sidewalk is struck and injured by snow which has slid from a roof, so constructed, the owner of the building is liable for the injuries thereby occasioned, even though the building be at the time in the occupation of a tenant, who is bound to make all needful repairs.
    Where premises are affected by a nuisance at the time of their demise, the owner is liable for any injury occasioned by it to a third person, even though the negligence of the tenant contributed thereto.
    Appeal from judgment in favor of tbe plaintiff, entered on tbe verdict of a jury.
    Tbis action was brought by tbe plaintiff to recover damages for injuries caused by tbe sliding of a quantity of snow from the roof of 91 South street, in the city of New York, on tbe 27th day of January, 1871.
    The action was based on tbe negligence of tbe defendant as tbe owner of tbe premises.
    Tbe answer admitted tbe defendant to have been tbe owner of tbe premises, but denied tbe other allegations of tbe complaint, and alleged that on tbe 27th of January, 1871, tbe premises in question were under lease for a term of years, and that tbe lessee was in actual possession, under covenants to repair.
    It was shown on tbe trial that the plaintiff was passing on the sidewalk, in front of 91 South street, in company with aman by tbe pame of Anderson, and that a quantity of snow slid from the roo'f of the building upon both of them, and caused the injuries complained of.
    It was shown that the house had a slanting roof, but did not have a snow-guard on the side toward the street, and that the gutter broke away in the center at the time of the snow-slide.
    Evidence was given tending to show that a snow-guard or snowboard is an essential appliance on slant-roofed buildings, for the protection of persons traveling on the walks below, and that one was put upon these premises after the accident.
    A girder or stick of timber was near or upon the eurb-stune opposite these premises, at the time of the accident, over which it was claimed that the plaintiff was pulled by Anderson when the accident occurred ; and prior thereto, and after the defendant had leased the premises, a mansard roof had been placed upon the adjoining building, which extended somewhat above the roof of defendant’s premises, and which she claimed rendered the premises more dangerous than at the time of the demise.

      Geo. V. N. Baldwin, for the appellant.
    It is a well settled principle of the common law that the occupier, and not the landlord, is bound as between himself and the public, to keep buildings, and other structures abutting upon the common highway, in repair, so that they may be safe for the use of travelers thereon, and is prima facie liable to third persons for damages arising from any defect. (.Regina v. Watts, 1 Salk., 357 ; Oheetham v. Ramp-son, 4 T. R., 318; Regina v. Buoknall, 2 Lord Raymond, 804; Lowell v. Spa/aldmg, 4 Cush., 277; Oakham v. Holbrook, 11 id., 299; Kirby v. The Boylston Market Association, 14 Gray, 249.) In order to hold the landlord, the construction must be not only faulty, but damages must immediately and necessarily flow from the construction; but if the construction be usual, and has been up for years, without damage of danger, the landlord will not be held liable, even though another construction might have avoided it. (Fish v. Dodge, 4 Denio, 311; Picard v. Collins, 23 Barb., 444.) The landlord will not be held liable if the construction is not in itself a nuisance, but becomes so either by the method of its use by the tenant, or by neglect on his part; in other words, if he fail to take such care to avoid accident as is incumbent upon every man in the management qf property. (Rich v. Basterfield, 4 C. B., 783;
      Clancy v. Byrne, 56 N. Y., 129 ; Candy v. Jubber, 63 L. J. [Q. B.], 151; 5 B. & S., 78 ; Eakin v. Brown, 1 E. D. Smith, 36; Cii?/ of Lowell v. Spaulding, 4 Cush., 277.)

      W. JR. Beebe, for the respondent.
    It is well settled that the landlord is liable for injuries resulting from defective construction, or defects existing at the time of the demise, even though the premises were at the time of the accident in the possession of a lessee who had covenanted to do all needful repairs. (Moody v. The Mayor, 43 Barb., 282; Whalen v. Gloucester, 4 Hun, 24.) If the plaintiff heard the snow sliding from the roof, and apprehended danger therefrom, it would have been negligence on his part to remain beneath it. It was his duty to flee the imminent peril, and having no time to mature a plan, it would be excusable, if in escaping one danger he should fall upon another. The defendant would be liable as the one whose negligence had put him to the extremity. (Wharton’s Law of Negligence, §§ 94, 304, 337, 377; Buel v. Ef. Y. Cent. B. R. Co., 31 N. Y., 314; Coulter v. Am. Bn. Exp. Co., 5 Lans., 67; Stokes v. Saltonstall, 13 Peters, 181.)
   DaNiels, J.:

The appeal taken in this cause is exclusively from the judgment recovered in the action, and; consequently, questions of law are alone presented for the decision of this court. An appeal upon the law is all that can be taken from a judgment, when it has been entered upon the direction of a single judge of the same court. The only cases in which the facts can be reviewed, by an appeal from the judgment, are those where the trial has been had by the court, or before referees. (Code, § 348.) Where the trial has been by jury, the facts of the case can only be reviewed by way of a motion for a new trial on the minutes, or upon a case, and on an appeal from the order entered upon the decision, when the motion has been heard upon the minutes, or by the Special Term. (Code, §§ 264, 265, 349, sub. 2; Carpenter v. Beare, 4 Hun, 509.) A motion for a new trial was made by the defendant upon the minutes, and denied, but, as no appeal from the order was taken, the objections urged against the verdict on the evidence alone, are not now before this court for its consideration. The legal points in the case arise upon the motion made for a nonsuit, and the exceptions presented to the charge of the court.

The action was for damages caused by an injury to the plaintiff’s person by the sliding of snow from the roof of a building owned by the defendant, and striking the plaintiff as he was passing along the sidewalk. The building was at the time in the possession of a tenant under a lease requiring that the tenant should keep it in repair. And for that reason it has been strenuously insisted that the defendant as owner was not legally liable for the consequences of the accident. That would very clearly be the case if it had resulted from the omission of the tenant to keep the building in repair, or from the manner in which it was used and occupied by him. But the theory of the plaintiff’s case was,' that the roof of the building had not been properly constructed or guarded by the owner, and that it was for that reason the snow was precipitated from it on the person of the plaintiff. Evidence was given tending to support that view of the fact, and while it was controverted on the part of the defendant, the inquiry as to its truth still remained a proper one for the decision of the jury. And they have found the fact as it was asserted on behalf of the plaintiff. From that it must be assumed, in disposing of this case, that the roof of the building was so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk below, and that it had no guard at its edge which could be reasonably expected to prevent that result.

A roof so constructed and maintained in a large city is in judgment of law a nuisance, for it necessarily imperils the safety of persons passing below it in the lawful use of the street upon which it fronts. Any act of an individual “ though performed on his own soil, if it detracts from the safety of travelers, is a nuisance.” (Shipley v. Fifty Associates, 101 Mass., 251, 253; same case, 106 id., 194, 198, 199.) In one of its essential features, it is true, that case differed from the one now before this court, for it appeared that the landlord had retained the supervision of the building. (See, also, Kirby v. Boylston, 14 Gray, 249.) But the proposition has been held to be a sound one by nearly all the cases requiring its consideration, that the landlord or owner will remain liable after a lease and exclusive possession under it taken by a tenant of premises affected by a nuisance at tbe time of the demise, for an injury occasioned by it to a third person, and, upon general principles, he oug'ht not to be exonerated from that liability, even though the tenant’s negligence combines with the same wrong in producing such a result. The erection and maintenance of a nuisance is a wrong, and by leasing the building affected by it to another person, the owner continues it and stipulates for the enjoyment of a profit from it. That has always been held to be sufficient to render him accountable to innocent third persons for the consequences of injuries received by them from it. In the case of The Mayor of Albany v. Cunliff (2 Comst., 165), it was stated to be the law, that “ a party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, “ or where he conveys the property, with covenants for the continuance of the nuisance.” (Id., 174, 175 ; Hanse v. Cowing, 2 Lans., 288; Taylor’s Land, and Ten. [2d ed.], § 206 ; Fish v. Dodge, 4 Denio, 311; Waggoner v. Jermaine, 3 id., 306 ; Moody v. Mayor, etc., 43 Barb., 282; Irvin v. Wood, 4 Robt., 138; Irvin v. Fowler, 5 id., 482 ; Whalen v. Gloucester, 11 S. C. N. Y. [4 Hun], 24; Bellows v. Sackett, 15 Barb., 96 ; Pickard v. Collins, 23 id., 444; Conhocton Stone Company v. Buffalo, N. Y. and Erie Railway Co., 52 id., 390; Swords v. Edgar, 59 N. Y., 28.) This point was not presented by the case of Clancy v. Byrne (56 N. Y., 129). And Leonard v. Stover (115 Mass., 86), which held the owner not to be liable in a case similar to the present one, was considered to have been erroneously decided in the decision made in Swords v. Edgar (supra). This case too is even distinguishable from that, in the circumstance that it cannot be said that the tenant was negligent for not removing the snow, because the injury happened so soon after it fell. The slide, as the jury have found the fact, was not caused by the act or omission of the tenant, but by the steepness of the roof upon which as it melted it could ’ not remain, and it would obviously have been the same if the building had not been leased, but had remained unoccupied; no agency of the tenant intervened to produce the result, but it was solely attributable to the fact that the roof was so steep that it could not retain the snow, and snob a structure must clearly endanger the safety of persons passing upon the walk beneath it.

On the part of the defendant, evidence was given tending to show that another person walking with the plaintiff pulled him sideways against a girder, and in that manner caused the injury of which he complained. And upon that part of the case it was held by the court, and the jury were charged, that if Anderson jumped on one side over a girder,” which was lying in or near the gutter, “and having hold of the plaintiff pulled him sideways and caused Walsh to trip or stumble over the girder,” and he was injured in that way, and not struck by the mass of falling snow, then the defendant was not liable. The proposition was clearly and fully stated by the learned judge, and it was all upon this subject which the defendant could reasonably expect should be said, and she had no right to claim that it should be repeated. But after the charge was delivered her counsel requested the court to say that, “if the jury believed from the evidence that the witness .Anderson, at the time of the accident, laid hold of the plaintiff and drew him over the girder, and that by reason thereof the injury took place, the falling of the snow is too remote, and the plaintiff cannot recover.” That is precisely what the learned justice had previously declared, and nothing had been afterwards said in any degree tending to qualify or change the proposition. If it was obscured-by any thing said by way of responding to the proposition again, it could not have been from any design to modify or change it, because it had been $o decidedly and unequivocally held before that. But rather from the effort made to secure what was only a repetition of the comments made upon a subject already clearly and justly disposed of in favor of the defendant, but without either withdrawing or repeating what had been so well stated in this connection, the learned justice added that, “if Anderson and Walsh heard this snow, and were both trying to escape the danger of injury therefrom, and Anderson by a sudden impulse, arising from such danger, did pull Walsh to assist him in escaping the danger, the alleged negligence of the defendant is not too remote to be considered as having produced the accident.” It will be seen that it was not held that the defendant would be liable if he was injured by being pulled over the girder, and in view of what had been so clearly said before, that could not have been intended nor understood by the jury. For the purpose of considering the eifect, the charge must be regarded as an entirety. And that renders it apparent, that what was to be understood from this statement was, that the defendant was not entitled to be exonerated from liability’, even if Anderson, acting upon a sudden impulse created by the presence of danger, pulled the plaintiff to assist him in escaping, if the falling snow still produced the injury. That construction is required by the circumstances that it had been previously held in distinct and unqualified terms, that the defendant was not liable if the plaintiff was injured by being pulled against the girder, and the omission to state that the defendant would be liable for the consequences of such an act in response to this request. The court did not decline so to charge, because that had already been done, and what had been said upon the subject was left without qualification. There was no ground, therefore, on which an exception to a refusal could properly be placed.

The court was also requested to charge: “ That if the independent act of a third person intervened between this wrong complained of and the act which was the immediate cause of the injury, the injury was too remote, and the plaintiff cannot recover.” To that the court responded: “If Anderson and the plaintiff, Mr. Walsh, when going up South street, saw or heard this mass of snow coming, and both Anderson and Walsh, by a sudden impulse to avoid the snow, jumped one side, and in that way the plaintiff was injured, then the defendant’s negligence would not be too remote, because they would not have jumped but for the falling of the snow, and the danger in which they were placed by its fall.” No exception was taken to this proposition, nor to any supposed omission to embody in it the full effect of the request. But if there had been to the omission to charge it as it was stated, it would be completely answered by the fact that the court had already charged it, so far as it was applicable to what the evidence on the part of the defendant tended to show, that such an independent act had intervened and caused the injury. The proposition, which was stated in this connection by the court, in substance, was, that if the plaintiff, actuated by fears of apparent danger, was injured in his endeavors to avoid it, that would not of itself relieve the defendant 'from liability And that seems to be sound, and sustained by authority. (Buel v. New York Central R. R. Co., 21 N. Y., 314; Coulter v. American M. U. Exp. Co., 5 Lans., 67; Stokes v. Saltonstall, 13 Peters, 181.)

It Las also been claimed, that the court should have allowed greater effect than was given to the circumstance of other buildings being in the same condition as this one ; and to'a change made in the elevation of an adjoining building. As to the latter, it was held that the defendant was not liable if that caused the accumulation of the snow. And the former was also charged, with the qualification that the defendant should have adopted such safeguards to prevent the sliding of the snow from the roof, as was sanctioned by more modern experience than that existing when the building was erected. That seems to have been entirely sound. But if it were not, as no exception was taken in either case, the judgment could not be reversed by reason of it. The only exception taken was at the end of the charge, and then only to the proposition held concerning the act of Anderson in pulling the plaintiff. But if that could be extended so far as to nominally include all that had been said by way of response to the requests, it would be too general and indefinite to be of any service to the defendant. (Walsh v. Kelly, 40 N. Y., 556; Requa v. City of Rochester, 45 id., 130; Ayrault v. Pacific Bank, 47 id., 570.) The charge upon the whole case was as favorable as the defendant was entitled to have it under the evidence. And if the minds of the jury were confused, and discriminations they might otherwise have made were prevented,” it was evidently because the charge, as it was delivered, was obscured by the responses made at the defendant’s request. It not unfrequently proves to be the case, that an entirely just and proper charge is rendered of but little benefit to the party whose rights have been carefully guarded by it, in consequence of detached propositions requiring portions of it to be repeated, or the court to extend them farther than either the law or the evidence would appear to justify. That may be unfortunate for the party insisting upon it, but the court would not be justified in distorting or harshly construing the charge as an entirety, to relieve the party from its effects.

The judgment should be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.