text:
    Emil Dieckerhoff et al., Resp’ts, v. Otto Adler et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    1. Pleadings — Money had and received.
    Though, in an action for money had and received, there is an allegation in the complaint that the money claimed was originally paid by mistake, a subsequent allegation that the defendants retained it without right, because plaintiffs were not indebted to them, makes the action substantially for money had and received, and a motion to dismiss is properly refused.
    3. Same — Failure to apply.
    Where, in an action to recover moneys paid by mistake, it appears that the defendants were allowed by agreement to retain and apply such moneys upon any future indebtedness, a charge that, if defendants failed to apply the money to a certain sale made by them to plaintiffs after the agreement, and at that time were holding the money as belonging to plaintiffs, plaintiffs are entitled to recover, notwithstanding any indebtedness on subsequent sales, is erroneous under an issue that they were not indebted in any sum before the commencement of the action.
    3. Jurisdiction — Waiver.
    Want of jurisdiction by reason of the non-existence of any jurisdictional fact is waived by the appearance of the defendant, unless it is pleaded in defense.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Hatch & Wickes, for app’lts; George Carleton Comstock, for resp’ts.
   Daly, C. J.

This was an action to recover back money paid to defendants under the following circumstances, as set out in the complaint : Plaintiffs remitted to defendants on September 28, 1892, 5,208.55 francs, in full payment' of an invoice of goods ; and again, on October 4,1892, by mistake, remitted the same amount in payment for the same goods. The complaint further alleged that the defendant retained the last-mentioned sum unlawfully to their own use ; that it has been demanded from them ; and that they have refused to pay the same, although plaintiffs have at no time been in-indebted in any sum which has not otherwise been paid by plaintiffs to defendants prior to the commencement of this action and prior to the aforesaid demand and refusal. The answer denies all the material allegations except the first payment, and sets up as a defense that the parties had an open mutual running account, and that any payments made at any time by plaintiffs were made upon said account, andaré applicable thereto when adjusted between the parties; that the payments were not made through any mistake of fact, but were made with full knowledge and voluntarily, and that the account is to be adjusted in an action in Germany or Switzerland, the defendants doing business in St Gall, in Switzerland, and the plaintiffs doing business in Barmen, in Germany, having a branch house in New York; and that their account is adjusted between them in Europe. The answer did not allege that anything would be found due to defendants upon the accounting, nor did it contain any-set-off or counterclaim against the sum demanded in the complaint. The issue presented by the pleadings was, in effect, whether the plaintiffs had paid the money claimed by mistake, and whether they were indebted to the defendants in any sum to' which such payment could be applied. It appeared on the trial that the allegations of the complaint of two payments for the same invoice of goods, the last payment being made by mistake, was-true; but it also appeared that plaintiff thereafter, at the suggestion of defendants, allowed them to keep the remittance, and place it to plaintiffs’ credit against later invoices. Upon this fact being conceded, defendants claimed the right to a dismissal of the complaint, on the ground that the cause of action therein set forth was for money paid by mistake, whereas it appeared that the sum claimed was subsequently retained by defendants by agreement.

The motion to dismiss the complaint was properly denied. While there was an allegation that the money claimed was originally paid by mistake, the subsequent allegations that the defendants retained it without right, because plaintiffs were not indebted to them, made the action substantially for money had and received; and the denials of the answer presented the issue which defendants claimed the right to try, and which was in fact tried in the action, viz. the right of defendants to retain and apply the amount in suit upon later invoices shipped to plaintiffs. The evidence upon this point discloses that the defendants were holding the money to reimburse them for damages sustained through the refusal of plaintiffs to receive such later invoices; plaintiffs rejecting the goods on the ground that deliveries were made after dates specified in the contracts, and defendants claiming that plaintiffs had waived the default by receiving the belated deliveries without objection. There was a question for the jury, and, had the verdict disposed only of that contention, it might not have been disturbed.

But the plaintiffs insist upon another and untenable claim, and. procured a ruling thereon in their favor, which defeats the present recovery. It appears that there was a third invoice of goods, which defendants delivered and plaintiffs received in August, amounting to $911.80, upon which plaintiffs claimed that the moneys in question — 5,208.55 francs- — should have been credited by defendants. Defendants refused to so credit, and, having assigned their claim to their New York agent, he sued and recovered upon it against the plaintiffs, who did not offset or counterclaim the 5,208.55 francs, but paid the judgment. The refusal of defendants to credit the amount on that indebtedness was urged on the trial of this action as a breach of the agreement by which they were to place that sum to plaintiffs’ credit against later invoices ; and it was claimed that such breach authorized plaintiffs to sue for the recovery of the 5,208.55 francs as wrongfully withheld. In that view of their right the trial judge concurred, and iustructed the jury, at their request, as follows:

“ Fifteenth. If the jury finds that plaintiffs were indebted to the defendant in the sum of $911.80, or thereabouts, for the bill of silk handkerchiefs ordered in June, and at the time of such indebtedness, and when it became due, the defendants were holding this money in question as plaintiffs’ money, and the plaintiffs were entitled to deduct such sum from the amount held by the defendants, and the defendants, nevertheless, refused to apply it to the payment of this bill for silk handkerchiefs, then the jury must find the verdict for the plaintiffs, without taking into consideration any later shipments.”

Under this instruction the jury were at liberty to find that defendants ought to have credited the overpayment on the bill of $911.80, and, if they so found, were directed that they must render a verdict for the plaintiffs, notwithstanding any indebtedness, of plaintiffs for later shipments. This was a complete disregard by plaintiff of their own demand in the complaint, which was. based upon the absence of any indebtedness whatever from plaintiffs to defendants. Ho claim was made in the complaint for the return of the money on the ground of a contract to apply it upon a specific indebtedness and a breach of such contract; but the issue tendered was that they were not indebted in any sum before the commencement of the action, and, under that pleading, plaintiffs could not succeed if any indebtedness greater than their claim existed in favor of defendants. For the erroneous instruction, the judgment must be reversed, and a new trial ordered.

As objection to plaintiffs’ recovery was also made on the ground that the court had no jurisdiction of the -action or of the defendants, it is proper to dispose of that contention on this appeal. We therefore, say that, whatever merit there might have been in the objections to the jurisdiction of the court, they could not be considered, because not raised by the answer. The jurisdiction of the court must always be presumed, and, where defendant appears, the want of jurisdiction by reason of the nonexistence of any jurisdictional fact is waived by the appearance, unless it is pleaded in defense. Code, § 266. In this case there was a general appearance by defendants, and the answer does not plead want of jurisdiction. Popfinger v. Yutte, 102 N. Y. 38 — 43 ; Pease v. Railroad Co., 10 Daly, 459.

Judgment reversed, and new trial ordered; costs to abide the event.

All concur.


source: Caselaw Access Project

author: Osborne, J.

license: Public Domain

text:
    Percy G. Williams, Resp’ts, v. Brooklyn District Telegraph Company, Limited, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.)

    Master and servant — Liability for willful acts.
    Where the master contracts to perform paroi service about and watch another’s premises, to prevent the entrance of burglars, he cannot, by committing his duty to an employe, shield himself from liability for the act of such employe in breaking into the house and stealing therefrom, on the ground that he never authorized him to do such unlawful act.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Geo. H. Fearons, Rush Taggart, and J. Arthur Corbin, for app’lt; Jacobs & Butcher, for resp’t.
   Osborne, J.

Plaintiff for a cause of action, alleged a contract between himself and defendant whereby defendant agreed to guard his property situated in his residence, No. 20 Eighth avenue, in this city, from burglars and thieves during the summer of 1891, and for that purpose to employ honest and competent servants to watch his premises; that defendant, in violation of this contract, employed a person to watch his premises who broke into and entered plaintiff’s house, and stole property therefrom of the value of $316, which amount plaintiff sued tó recover. . The defense was a general denial. Plaintiff obtained a verdict, and from the judgment entered thereon, and from the order denying a motion for a new trial, this appeal is taken.

The evidence submitted by plaintiff went to show that defendant employed one Burg as a watchman to look after plaintiff’s premises; that Burg feloniously entered plaintiff’s premises, and stole property therefrom; that. Burg was arrested for the theft, and it appeared soon after that he was an ex-convict. The learned trial judge, in a charge that was not excepted to, submitted three questions to the jury: First. Did the defendant make the contract sued on ? Second. Did its watchman, Burg, steal the property in question while performing the duty of watchman ? Third. Did the defendant fail to exercise the care of reasonably prudent persons in selecting Burg as its watchman ? And the jury was charged that, if they found that plaintiff had made out these three propositions by a fair preponderance of evidence, he was entitled to a verdict That plaintiff maintained his cause of action is evidenced by the verdict in his favor? At the close of the evidence, the learned counsel for the defendant moved for a nonsuit on twelve grounds, some of which were based on the alleged insufficiency of the evidence to prove the three questions of fact submitted to the jury as above stated, while the others rested on the contention, stated in various forms, that defendant was not liable for the criminal acts of Burg done without its knowlege or assent, and outside of the line and scope of his employment This motion was denied, and defendant excepted separately to the ruling of the court on each ground upon which said motion was made.

On the argument of this appeal, it is claimed, as ground for reversal, that the court erred in denying the motion for a nonsuit. In so far as any of the grounds urged in favor of granting the motion for a nonsuit related to the questions of fact in dispute, we think that those questions were properly left to the jury to determine, and we are of the opinion that the verdict was well sustained by the evidence, and that it should not be disturbed. On the other grounds stated for the motion, the authorities cited by the learned counsel for the appellant well sustain the general proposition that the master is not liablef or the unlawful or willful acts of his servants done outside of his line of duty or the scope of his employment. But we do not think that this proposition is applicable to cases like the one before us. In the case at bar defendant contracted to perform patrol services about and watch plaintiff’s premises, to prevent the entrance of burglars. It is well settled that, in a case where the party contracting commits the duty contracted for to another, he cannot shield himself from liability on the ground that he has committed his duty to another person, and that he never authorized that other person to do the particular act complained of. Having contracted to perform the duty, if he commits it to another, he does it at his peril. It is to be treated as his own act, and he is liable for whatever his agent or servant does, even though done contrary to instructions, willfully, or fraudulently. A familiar application of this principle is found in the obligation of common carriers of passengers. There the carrier assumes an obligation, not alone to carry its passengers safely, but impliedly also to exercise due care to protect them from the negligence and willful misconduct of those to whom the carrier has intrusted the duty. Wood, Mast. & Serv. § 321, and cases there cited. The same obligation also rests on a warehouseman, and, if his servants steal the property stored, he cannot shield himself on the ground that his servants acted outside of the scope of their duty. Jones v. Morgan, 90 N. Y. 4. Here the defendant, in the performance of its obligation, placed its servant in a position of trust and responsibility, and, by virtue of that position, the servant was afforded the opportunity, which he would not otherwise have obtained, of preying upon his master’s patrons. Defendant employed Burg as one of its watchmen, and fitted him out with its distinctive uniform, which shielded him and his acts and movements from the scrutiny which an ununiformed person would not readily escape, and so gave him the opportunity to open and enter plaintiff’s house without exciting inquiry or attention, and to steal therefrom. Plaintiff employed defendant to protect bis property with the full knowledge that it could only act through its servants whom it employed for that purpose. Defendant was bound to exercise reasonable care in the selection of its servants, and, if it neglects to do so (and the jury have here so found), it cannot now be permitted to plead; as an excuse for failing to do they very thing it was employed to do, that its servent was the guilty party, and that it has no concern with or responsibility for his unlawful acts, producing the very opposite result from that which it was employed to effect.

Judgment and order denying new trial must be affirmed, with costs.


author: Clement, C. J.

text:
    John Kelly, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.)

    Negligence — Contributory.
    The attempting to drive across a street-railroad track a short distance in front of an approaching car is not negligence as matter of law, where there are many tracks in the street at the point of crossing and numerous cars passing all the time.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Thos. M Pearsall, for resp’t.
   Clement, C. J.

The plaintiff was driving a cab on Pierrepont. street, in this city, on the afternoon of December 15,1893. When he approached E'ulton street, where Pierrepont street ends, it was necessary to cross Fulton in order to be on the right hand side of the street in driving to the New York and Brooklyn bridge. In crossing, plaintiff’s cab was struck by a trolley car, and he sustained damage to his person and property. There are many lines of carbon Fulton street on the block in question, and it is safe to say that there is no other block in the city where more cars pass in a given time. The learned counsel for the appellant contends that it is negligence for a person in a vehicle to attempt to cross a street-railway track a short distance in front of an approching car. The rule of law contended is undoubtedly correct as a general proposition, but has its exceptions. Such a rule cannot be rigidly applied where a vehicle is run into by a street car on a thoroughfare crowded with cars. The railroad company does not have the exclusive right to the use of the street; it does have a paramount right over vehicles. If the company runs so many cars that vehicles must wait till there is no car in sight in order to cross, the drivers would have to wait till late in the evening. It is the duty of the railroad company, in the vicinity of the city hall for example, not to block the streets, but occasionally to give way to the drivers' of vehicles who wish to cross. On the other hand, the drivers must not be reckless; must not drive directly in front of an approching car; must be prudent and careful. In the case of a collision between a trolley car and a wagon crossing the track, or in a case where a foot traveler attempts to cross the track and is run over, the locality is an important circumstance to be considered in the decision of a motion to dismiss for contributory negligence. McClain v. Railroad Co., 116 N. Y. 459; 27 St. Rep. 549. If the driver, by waiting for a few moments, would have a safe passage he should certainly wait. If he has to wait a long time for any passage at all, then he should not be held to the same degree of care as in a locality where cars only pass at intervals. We have carefully examined the record before us, are satisfied that the case was properly submitted to the jury on conficting testimony, and that their vedict should not be disturbed.

Judgment and order denying new trial affirmed, with costs.


text:
    Rodger Brennan, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.

    1. Negligence — Electric cars — Risk.
    The passenger takes the risk of the usual and necessary, though sudden movements of an electric car.
    2. Appeal — Verdict.
    R is the duty of the general term, on an appeal from an order denying a motion for a new trial, to consider the facts, and if a verdict, not just, has been rendered by the jury, to set the same aside.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.

      Morris & Whitehouse, for app’lt; Ayres & Walker, for resp’t.
   Clement, C. J.

The plaintiff claimed at the trial of this action that, when a passenger on an open car of the defendant, he was thrown off by a sudden “jerk” or movement of the car. The defendant offered evidence tending to show that the plaintiff was intoxicated, and while sleeping fell off the car. The case was submitted to the jury, to determine whether the plaintiff was thrown off by reason of a violent and unusual movement of the car, caused by the sudden increase of electric power by the motorman, or whether the plaintiff lost his balance, and fell off when the car was operated in the usual and ordinary way. The jury rendered a verdict in favor of plaintiff, and substantially the only point in the case is whether or not the verdict, on the facts, can be upheld.

It is a well known fact in the operation of electric cars, there are sudden movements, which are incident thereto. Of the usual and necessary movements of a car, though sudden, the passenger takes the risk. It is proper, therefore to examine the testimony of the plaintiff and his witness Grogan, which the jury believed, as is shown by their verdict. Brennan testified:

“ The accident happened near Sixth avenue, after crossing Bergen street. Just before the accident happened the car was going at a very nice rate of speed, until he came to the track, and then he slackened up, and it went smooth. Q. What track do you mean? A. Flatbush avenue, — Bergen street track; across that track. He slackened up going over that, and it went on a smooth gait, and all of a sudden it doubled its speed. He give a jerk like that. Give a kind of a rough jerk. The jerk went right at the front. I was sitting like that, forward. I was just sitting like that, talking to my friend in front about to-morrow day’s work, and the car gave a jerk like that, and he threw me back and out. There was no guard rail, nor nothing. I mean what they have, — • straps or cord. There was no guard at the side of the car. Q. What effect did that jerk have on you? A. Well, sir, it had a very hard effect on me. When the car jerked, I wop thrown out of the car by the jerk, — a very heavy jerk, too. I fell right on top of my head there.”

• Grogan gave testimony as follows:

“ Q. Where were you with him about nine o’clock or ten o’clock in the evening? A. We were on our way home to Flatlands, on the Flatbush avenue car. We took the Flatb.ush avenue car at Du (held street and Fulton. It was an open car, with seats across and facing.both ways. Brennan occupied the last seat facing the rnotorman, next to the conductor, — the last seat next to the conductor. I occupied the one right in front of Mr. Brennan. I was facing Brennan then, and Brennan was facing me. I recollect about the time the car was passing Bergen street: Q. About how was the car going when it was passing over the Bergen street tracks? A. It was going in a moderate rate. After it had crossed the Bergen street tracks, and was going on a little ways, the car give a sudden plunge forward. The car started up very sudden at a fast speed, and Mr. Brennan fell off. Q. What was Mr. Brennan’s position at the time the car made the movement' you have described? A. He sat something like this, talking to me; and it threw him right out of the car. The car pitched forward like that It started up faster. It was a violent jerk. It was going slowly, and the car give a violent jerk, and it thro wed me forward, and throwed Mr. Brennan out. I tried to catch a hold of him, and he was too heavy for me, and I had to let go.”

After a careful examination of the testimony given by the plaintiff and Grogan, we are satisfied that the plaintiff could not have been thrown off by reason of the sudden start of the car, unless he was sitting on the seat in a careless way. If he was sitting in a safe position, it would be impossible for a sudden forward movement of the car to throw him to the side and into the street. The forward motion of the car, if quick and violent, should, according to the laws of nature, have thrown the plaintiff towards the rear of the car, and the back of the seat would prevent him from falling. The use, on the trial, of the words “jerk,” “sudden plunge,” and “rough jerk,” by the plaintiff and Grogan, does not show that the car was operated in an unsafe way. The sudden start of the car was substantially all the two witnesses knew as to the cause of plaintiff’s fall, for they sat in the rear of the car, and Grogan had his back to the rnotorman. It is an everyday occurrence for electric cars to slow down while crossing intersecting tracks, and, as soon as they are over, to put on speed again. The motion of the car, when speed is again put on, is, to a certain extent, accompanied by a jerk. We have hesitated to reverse the judgment in this case for the reason that the jury decided the facts in favor of the plaintiff, and yet it is the duty of the general term, on an appeal from an order denying new trial, to consider the facts, and, if a verdict not just has been rendered by the jury, to set the same aside.

Judgment and order denying new trial reversed, and a new trial granted; costs to abide the event.


text:
    Gustav Paetzig, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.)

    Damages — Excessive.
    A verdict for $3,600 for personal injuries was held, in this case, not to he excessive, in view of the nature and extent of plaintiff’s injuries and their long duration.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Moore & Wallace, for app’lt; Chas. J. Patterson, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries sustained by him through the alleged negligence of the defendant in starting one of its cars while plaintiff was in the act of getting on the front platform thereof. Plaintiff made out a case from which the jury was justified in concluding that he signaled the driver of the car to stop, that the car stopped, and that, while plaintiff was getting on the front platform of the car, with one foot on the step and his hánds grasping the dashboard rail and the rail of the body of the car, the driver suddenly let off the brake, started the car, and plaintiff was thrown violently to the ground, and, while holding on to the dashboard rail with one hand, was dragged some twenty-five feet before the car stopped, bruising him severely, and inflicting serious injuries. In opposition to this contention of the plaintiff, some of defendant’s witnesses testified that plaintiff tried to get on the car while it was in motion, and missed ins hold and fell, and was dragged until the car was stopped. In singular contradiction of those witnesses, the driver of the car testified that he had stopped his car to let off some passengers, and that, while the car was at a standstill, plaintiff attempted to get on the car, stumbled, lost his balance, and fell up against the car and to the ground, and that the car did not move until plaintiff was picked up and helped by the driver to the sidewalk. The learned trial judge very properly submitted the case to the jury, and it has found a verdict in favor of the plaintiff, which, in our opinion, is amply supported by the evidence.

The verdict was for $3,600, and the learned counsel for the appellant contends that the damages awarded were excessive. We cannot agree with him. Plaintiff was fifty-seven years of age. It was in evidence that when he was thrown to the ground by the sudden starting of the car he was rendered unconscious; that he suffered from concussion of the brain and of the spine, and was bruised on the shoulder and chest, and had some superficial wounds on the face and head, as well as some lacerations of the scalp; that those injuries were painful, and confined him to his bed for four weeks, and he was unable to return to his work for sixteen weeks more. In addition, he had paralysis of the bladder and of the sphincter muscle, so that artificial means were necessary to draw his water and produce movements of the bowels, and, although the accident happened in April, 1891, the plaintiff still suffers pain as a result thereof, especially when there is a change in the weather. Considering the nature and extent of plaintiff’s injuries, and their long duration, we do not think that the damages are at all excessive.

Our attention is called to some alleged errors in the admission of certain questions. We have examined them, and think the exceptions taken are without merit, nor do they seem to us of sufficient importance to call for any discussion. Judgment and order denying new trial should be affirmed, with costs.


text:
    Edward R. Lazarus, App’lt, v. Charles J. Sands, Resp’t.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.)

    Broker — Employment—Proof.
    In an action for a violation of defendant’s duty to plaintiff as a broker, the evidence was held not to establish that the defendant was employed by plaintiff so as to make him liable for the difference between the price at which the owner was willing to sell and the price asked.
    Appeal from a judgment, dismissing the complaint

      Chas. F Brandt, for app’lt; A. Simis, Jr., for resp’t.
   Osborne, J.

Plaintiff, for a cause of action against the defendant, alleges in his complaint that he “employed defendant in the capacity of a broker to conduct the negotiations for the purchase of certain premises in the town of Flatbush, Kings county’’; that defendant, instead of purchasing said premises for the sum of $12,000, as he might have done, and which it was his duty to do as the trusted agent and representative of the plaintiff, fraudulently advised and counseled plaintiff to pay $14,000 therefor, and divided the difference of $2,000 between himself and one Edger-ton, to plaintiff’s damage $2,000. On the first trial of this action, plaintiff obtained a verdict in his favor, which, on appeal, we set aside on the ground that there was not sufficient evidence to make out a prima facie case that plaintiff employed defendant as his broker and agent to negotiate for the purchase of the premises in question. Vide 7 Misc. Rep. 282; 58 St. Rep. 588. On the second trial plaintiff was nonsuited, and he now appeals from the judgment dismissing the complaint.

We have carefully examined the evidence submitted by plaintiff on the second trial, and we fail to see that he has made out such a case as to induce us to alter the views expressed by us on former appeal. The evidence on the main issue, in support of plaintiff’s claim that he employed defendant as his broker to negotiate the purchase in question, is substantially the same as that presented on the first trial. True, on this trial plaintiff produced his bookkeeper to corroborate his testimony in one particular, but the evidence still falls short of making out a prima facie case that the defendant was employed by plaintiff as his broker. It plainly appears from the evidence that defendant, whom plaintiff knew to be a real-estate broker, had the lots in question on his books for sale, that he called the attention of plaintiff’s wife to them, and that she told her husband that defendant had the lots for sale. Negotiations then began between plaintiff and defendant for the sale of the lots, and,while it is clear that defendant urged plaintiff to make the purchase, and indulged in the usual roseate representations customary with many brokers as to the desirability of the purchase at the price which defendant named, yet nowhere is there, in our opinion, any evidence to alter the position which the parties occupied at the very outset of the negotiations, when as above stated, defendant had the lots on his books, as a broker, for sale, and was seeking to induce plaintiff to buy them for the highest price, and plaintiff, on his part, was endeavoring to •obtain them as cheaply as possible; and, in confirmation of this position of the parties, it appears that, when the contract for the purchase was signed by plaintiff, it contained a clause reciting that defendant was the broker in the sale, and entitled to a commission from the seller. We may add that plaintiff’s position is uttterly inconsistent with the claim he here asserts. He knew the defendant was a broker, seeking to dispose of the lots for the seller, and consequently owing the seller the duty of obtaining the highest possible price, yet plaintiff’s contention is that defendant was in duty bound to procure the lots for him, plaintiff, at the lowest possible price, regardless of his obligation to the seller. The learned counsel for the appellant has submitted to us an exhaustive brief on the good faith due from a broker to his principal, and the authorities cited by him have our hearty concurrence, but we cannot see that they are applicable to this case, because plaintiff has failed to show that defendant occupied the position of broker for plaintiff in the transaction in question. Judgment dismissing the complaint should be affirmed, with costs.


author: McAdam, J.

text:
    William W. Niles, Pl’ff, v. Elisha Fenn, Def’t.

      (New York Superior Court, General Term,

      Filed May 25, 1895.)

    Injunction — Breach op covenant.
    A covenant on the part of a vendor, who disposes of his business with the good will thereof and, as an inducement to the sale and in consideration thereof, agrees not to re-enter the same business for a period of four years within a certain territory, is valid and enforceable by a court of equity.
    Action for an injunction to enforce a covenant.

      A. C. Palmer and James Forrest, for pl’ff; Jacob Fromme, for def’t.
   McAdam, J.

The defendant carried on- a dental business at No. 172 East One Hundred and Sixteenth street, this city, which business had been conducted by him in and about said neighborhood for a period of ten or twelve years. On May 1, 1893, the plaintiff purchased the business from the defendant, together with the good will thereof, paid the defendant $1,500 therefor, and, as an inducement to the sale, the latter agreed not to re-enter the practice of dentistry for a period of four years from May 1, 1893, within the territory bounded by the Harlem river on the north, Seventieth street on the south, Bast river on the east, and the North river on the west. The object of this agreement was to protect, the good will, which formed the main inducement to the sale, and for which the plaintiff parted with almost all the money he paid.

Although the business sold was a professional one, the law recognizes the fact that it has a good will, which may be sold as an-incident of the business. If the customers decline to go to the “old stand," this is the plaintiff’s misfortune; but the defendantmust not interfere to the plaintiff’s prejudice. Good will is a commodity, 1 Colly. Par’tn. (6th ed.) 226 et seq.; means the custom of any trade or business (Webst. Diet.); resolves itself into reputation, Howe v. Searing, 6 Bosw. 354; is the probability that the old patrons will continue customers at the old place, Cruttwellv. Lye, 17 Ves. 347 ; Fenn v. Bolles, 7 Abb. Pr. 202; and includes every possible advantage that has been acquired by the vendor while carrying on the business. Manufacturing Co. v. Hall, 61 N. Y. 226. It is a. species of property depending on circumstances for its value. It is in some instances more valuable than the second-hand chattels that go with it, and often the inducing cause of a purchase. It may be precarious ; need, attention; and at times protection. Part of the custom may by the change drift away, but the vendor must not create the'current.that carries it.

The covenant was to protect the good will and keep it with the plaintiff. The defendant thereafter violated the covenant by opening and maintaining a rival establishment within the restricted territory. High, Inj. § 736 et seq.; Hil. Inj. (3d ed.) 698; Pom.. Spec. Perf. § 25. The claim that the defendant did not understand the nature and effect of the covenant, or that it was without consideration, is not borne out by the testimony, which clearly shows-the contrary. He is an intelligent man, and, before violating the covenant, endeavored to procure permission from the plaintiff to resume business with the prohibited territory, and made offers to-induce the plaintiff to give his consent thereto, which the plaintiff declined to grant. The defendant states he made these propositions because he felt under a moral obligation to refrain from carrying out his intention wdthout the plaintiff’s consent. Under the circumstances, he might well have compunction in regard to the matter. The nature of the transaction with the plaintiff required his permission to authorize interference by the defendant. It is clearly established that the defendant violated the covenant. The card issued by him in December following the sale, containing the defendant’s name, address, and the word “dentist," shaw's that he was, to an extent at least', still in the same business close by the “old stand." The fact that dentistry was practiced by the defendant in violation of the agreement was also clearly shown by witnesses who patronized him. The covenant is legal and enforceable by a court of equity. Francisco v. Smith, 143 N. Y. 488; 62 St. Rep. 803 ; Diamond Match Co. v. Roeber, 106 N. Y. 487; 11 St. Rep. 47; Stanley v. Pollard, 55 St. Rep. 157.

The case presented calls for equitable interference. The covenant must be preserved and enforced, and to that end the plaintiff is granted the injunctive relief claimed.


author: Dykman, J.

text:
    William H. Van Arsdale, Resp’t, v. George King, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Judgment — Leave to sue — Vacation—Loches.
    A motion to vacate an order granting leave to sue on a judgment, made nearly four years after entry of such order, will be denied on the ground of loches.
    Appeal for an order denying a motion to vacate an order, granting leave to sue on a judgment.
    In April, 1894, defendant moved to vacate an order made on December 6, 1890, granting leave to sue on a judgment rendered in favor of plaintiff against defendant in November, 1880. The moving papers presented two objections to the order: First, that defendant, when the preliminary order was made, on November 26,1890, allowing service by mail of the notice of the application for leave to sue, was within the jurisdiction of the court, and could have been served personally with such notice; and, second, that the order permitted the service of notice to be made on or before the 28th of November, and the application to be made on the 6th of December, — that is, permitted service by mail in less than sixteen days.

      Norman A. Lawlor, for app’lt; Isaac N. Mills, for resp’t.
   Dykman, J.

This is a'n appeal from an order of the special term denying a motion to vacate an order made at the Westchester county special term on the 6th day of December, 1890, granting leave to bring this action, and to set aside and vacate all the proceedings subsequent thereto, including the judgment entered in this action.

The great delay in making this motion would be a sufficient justification of its denial. But, aside from the delay, the motion was entirely destitute of merit. At most, there was only irregularity in the original motion for leave to sue. The merits are all with the plaintiff, and no injustice has been wrought. The order should be affirmed, with $10 costs and disbursements.

All concur.


author: Brown, P. J. Dykman, J. Cullen, J.

text:
    Maria O. Simms, App’lt, v. City of Brooklyn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Condemnation proceedings — Award—Assignment.
    A deed, conveying a lot of land, part of which had been condemned for ' street purposes, and containing the usual covenants of seizin, subject to the rights of the city to such part, does not transfer to the grantee the award theretofore made for the part of the lot which had been condemned.
    Appeal from a judgment entered in favor of defendant

      John T. Barnard, for app’lt; Richard B. Greenwood, Jr., for resp’t.
   Brown, P. J.

This action was brought to recover the amount of an award made by commissioners for land taken for the widening of North Second street in the city of Brooklyn pursuant to chapter 559 of the Laws of 1871. No question arises as to the liability of the city for the amount of the award, and the only contention is as to the person entitled to receive it. The title to the land taken for the improvement vested in the city by force of the act referred to, but, as I understand the evidence, the improvement had not been made when the deeds hereinafter referred to-were executed, but the street and the adjoining lots remained as they were before the law was passed. Henry C. Simms was the owner of a lot of land fronting on North Second street when the act referred to was passed, and when the report of the commissioners was made, and was, in his lifetime, entitled to receive the award. He died in the year 1888, leaving a will, whereby he gave all his property, real and personal, to the plaintiff, who wa,s his wife, and appointed her and his two sons his executors. On April 26,1886, the plaintiff conveyed the lot of land devised to her by said will to Harry E.-Storm. The consideration expressed was one dollar, and the description was that of the original lot, including the front taken by the city for widening the street. , The conveyance was expressed to be “ subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to be taken for the widening thereof by an act passed April 19, 1871,” etc., and it contained the usual covenant of seisin. Subsequently Storm conveyed the same premises to Matthew Oh arde, and he conveyed them to Emily J. Charde and others. The last-named parties sued the defendant for the award in the city court of Brooklyn, and recovered a judgment therefor, which has been affirmed by the general term of that court. 8 Misc. Rep. 498 ; 61 St. Rep. 51.

The question presented in this action is. whether the award passed to Storm by the conveyance of the plaintiff above referred to. The facts differ from those in the cases of Magee v. City of Brooklyn and Delap v. Same, 144 N. Y. 565; 68 St. Rep. 107, upon which the decision of the city court rests. In Magee's Case the decision was placed upon the grounds that the land was con veyed precisely as if the title was not affected by the passage of the act; that the award in equity represented the portion of the land taken, and, having conveyed the land with full covenants, the grantors were held to have transferred the award to their grantees. In Delap's Case title was acquired under the foreclosure of a mortgage which was upon the land at the time of the passage of the act, and in which judgment was entered and sale had before the award was made, and it was held that the purchaser at the foreclosure sale was entitled to the award. In respect to the reservation contained in the deed from the plaintiff to Storm, this case also differs from Englehardt v. City of Brooklyn, 44 St. Rep. 474, and Schafer v. City of Brooklyn, 19 Supp. 178, also decided in, the city court of Brooklyn. This case is one that must be decided upon its equities, and the deed to Storm must be construed according to the intent and design of the parties, manifested by the language used and the surrounding circumstances. I am unable, however, to find anything in the conveyance, or in the facts before us, indicating an intent to assign the award. No particular importance is attached to the fact that the plaintiff was the executor of her husband, and held title to the award in her representative capacity, and title to the land in her individual character. She took, under her husband’s will, the whole beneficial interest in the estate; and, if there were any fact or circumstance to indicate that she assumed to convey to Storm the whole lot of land, including that taken by the city, the case would fall within the rule applied in Magees Case, and the judgment would have to be affirmed. But the parties recognize the rights of the city, and the nominal consideration expressed in the deed, indicates, not a sale for the value of the full lot, but a gift of such title as the plaintiff possessed. Undoubtedly, she intended to convey all the land to which she had title, and, if the city had no rights, she intended her grantee to take the whole lot; but it is equally apparent that both parties recognize a possible title in the city to the front of the. lot; and, if that proved to be the fact, then the grantee was to take under the deed title only to the balance of the land; and I can find no fact indicating that in the latter case the grantee was to take the award in place of the front of the lot, nor any indication that the plaintiff intended to assign it. Indeed, if we assume that this transfer was for a nominal consideration, — which we must do from the expressed consideration of the deed ; in other words, it was substantially a gift to Storm, — then there is nothing in the case to indicate that the plaintiff intended to assign the award. That was not, in terms, embraced in the conveyance. It was a mere right of action, not running with the land, and was held by the plaintiff as executrix of her husband ; and it was incumbent on the defendant in order to defeat her right to recover the award, to produce some competent evidence that she had assigned it. It is unfortunate that the several claimants to this award had not all been made parties to one suit, so that the defendant might not be subjected to a double liability ; but, as the plaintiff is not in any way bound by the decision in the Oharde Case, she is entitled to have the question decided upon its merits. I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Dykman, J.

(concurring). — This suit was instituted for the recovery of an award for land appropriated under the right of eminent domain for the widening of a public street in the city 'of Brooklyn. The property for which the award was made was owned by Henry 0. Simms, and he was entitled to the money. He died in 1883, leaving a last will and testament, by which he gave all his property to the plaintiff, and appointed her and his sons the executors thereof. In the year 1886 the plaintiff executed and delivered to Harry E. Storm a deed of conveyance for the lot, including the front which had been taken for widening the street. The consideration named in the deed was one dollar, and it was made “ subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to be taken for the widening thereof by an act passed April 19, 1871.” The question involved in this appeal is whether the award passed to Storm, the grantee of the plaintiff. As we have already seen, the boundaries specified in the deed from the plaintiff to Storm included the property taken by the city, but the exception from the operation of the deed of the rights of the city in front of the property indicates a recognition of those rights by the grantee. The exception also indicates an intention to convey only the land tp which the plaintiff had the title. The deed is entirely destititute of language indicative of any intention to assign or convey the right of the plaintiff to the award in question, and it would not pass under the general language of the conveyance. The right to the award passed to the plaintiff under the will of her husband. The case of King v. Mayor, etc., of New York, 102 N. Y. 171, was similar to this, and it was there held that where, under a statute closing a highway, damages were directed to be awarded, and paid to the owners of premises required by the closing, the right to damages was personal, and belonged to an owner at the time of the closing, although before the award he had conveyed his title. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Cullen, J.

I concur in the opinion delivered by Justice Brown. As the result of this opinion is a decision opposed to that made by the city court of Brooklyn in Charde v. City of Brooklyn, 8 Misc. Rep. 598 ; 61 St. Rep. 51, I have examined the record in that case. There it was conceded and found 11 that many years elapsed after the making, filing, and confirmation of said report of said commissioners, without anything further being done towards the completion of the widening of North Second street; and it was not known whether said defendant would finish said work, or whether the making of said improvement would be abandoned entirely." It was further found that there was on the lot a three-story brick house, in existence from 1855 till the present, fourteen feet of which are taken by the widening. These facts do not appear in the record before us. If such were ¡the facts, and especially if it should be made to appear that there was a substantial consideration paid plaintiff for the conveyance, I think there would be little difficulty in holding that she had transferred by the conveyance her right to the award.


author: Per Curiam.

text:
    City of Syracuse, Resp’t, v. Sidney L. Benedict et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1, Condemnation pboceedings — Extent.
    Chap. 291 of 1889, as amended by chap. 314 of 1890, does not authorize the city of Syracuse to condemn the right to lay any other pipe than the one specified in the act.

      3. Same — Averments denied by answer — Burden.
    Averments in a petition, which are denied by the answer, must be proved by the petitioner.
    3. Costs — Separate bills.
    Separate bills of costs will not be allowed against defendants who answer jointly in a proceeding to condemn land owned by them as "partners.
    Appeal from an order in favor of plaintiff.
    This was a proceeding brought by the plaintiff, in aid of the provisions of chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chapter 314 of Laws of 1890, to acquire by right of eminent domain certain property, rights, and easements ■of twenty-eight defendants, over whose lands a proposed conduit line passed from Skaneateles Lake to the city of Syracuse. The petition of plaintiff is dated and vertified November 21,1892, and was presented at a special term of the supreme court at Syracuse on December 3, 1892. The appellants, Benedict and Martin, among others, put in an answer, and the issues joined were brought to trial at special term. Upon the decision of the court there made the judgment was entered referred to in the notice of appeal. In pursuance of the judgment, appraisers were appointed by order dated December 31,1892. They afterwards made a report, and an order of confirmation was made on 2d May, 1893, which is the order appealed from.

      C. R. Milford, for app’lts; W. A. Beach and Chas. L Stone, for resp’t.
   Per Curiam.

1. By section 18 of the act of 1889, as amended by the act of 1890, it is provided, as follows:

“The Syracuse water board is hereby authorized, under the restrictions and conditions hereinafter mentioned to take and conduct water not required for the Erie Canal, from Skaneateless Lake, to said city, through a pipe or main not exceding thirty inches in diameter for the purpose of supplying said city and its inhabitants with water.

It was held and decided by the special term on the trial of the issues “ that the plaintiff is entitled in this proceeding to acquire and condemn the right to lay, maintain, operate, and repair within ¡the limits of the property acquired for the purpose, not merely the one thirty-inch conduit pipe specified in the statute, and referred to in the petition, but also the right to lay, maintain, operate, and repair within said limit such other conduit pipe or pipes as from time to time the public use of said city hereinbefore referred to may require, and as the city may at any time be entitled to construct and lay.” In the judgment entered on the decision, it was adjudged that the plaintiff was entitled to condemn and acquire “the right to lay, relay, maintain, and repair thereon such water pipe or pipes as shall be necessary or proper for the purpose of ■conveying water from Skaneateles Lake to said city, and to make such excavations and perform such other work thereon as may be ¡necessary in the laying of such conduit pipe or pipes, and for its future care and maintenance.”. We are are of the opinion that the court erred in holding that the plaintiff had the right to condemn the right to lay any other pipe or pipes than the one specified in the statute. The grant from the state was limited to the water that could be conducted through the one specified pipe. No greater right was given, however much the city might in the future need it. The right of eminent domain could only be invoked by the city to utilize" the grant from the state as in fact made. That was limited to the one pipe as specified, and we cannot assume that the state will ever increase the.grant. The proposed use of the lands of the owner must be clearly embraced within the legitimate to object of the power conferred by the state. In re Staten Island Rapid Transit R. Co., 103 N. Y. 251, 257 ; 3 St. Rep. 48 ; In re Poughkeepsie Bridge Co., 108 N. Y. 483 ; 13 St..Rep. 770; Lewis, Em. Dom. § 253 et seq.

2. It was found by the special term, as matter of fact, that the-plaintiff has attempted to acquire by the purchase .from the appellants the property or rights sought to be obtained, but has been unable to agree with them. There was an allegation to this effect in the petition, and it was denied by the answer. There was no-proof that sustained the finding, and it is erroneous, unless the burden is on the appellants to disprove the allegation. "This was held to be the rule in some cases under the peculiar provision of the general railroad act (chapter 140, Laws 1850, § 15) which provided that on the presentation of the petition any of the persons affected “ may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it.” There is however, no such provision in the condemnation law (Code Civ. Pro. § 3357 et seq.), and we held at this term, in the case of City of Syracuse v. Stacey, 67 St. Rep. -, that asimilar proceeding under the Syracuse water act is to governed by the provisions of the Code. The proceedings (sections 3364-3368) are made to conform to similar proceedings in actions, and it is quite evident, that the issues are to be formed and tried as in ordinary actions. As said in Re Broadway & S. A. R. Co., 73 Hun, 13; 57 St. Rep. 108: “An answer in the form prescribed by section 3365 raises an issue, and the corporation seeking to proceed must meet it by proof." We are of the opinion that the plaintiff was called on to furnish proof of its attempt to purchase and inability to acquire.

3. In the decree and judgment it is directed that the plaintiff" recover separate bills of costs against the said defendants Sidney L. Benedict and Nelson Martin. In the petition it was alleged that Benedict and Martin were copartners, and owned the premises as such, and it is so found in the decision. The answer of Benedict, and Martin was a jointone. By section 3372 it is provided :

“If a trial has been had all the issues determined in favor of the-plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering, the costs of-such trial caused by the interposition of the unsuccessful defence, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the supreme court.”

Under this provision, separate bills of costs should not, we think have been allowed against the appellants. See Van Tine v. Crane, 1 Wend. 524; 17 Am. & Eng. Enc. Law, 918.

Order appealed from reversed, with ten dollars costs and disbursements, and appraisal vacated, and judgment reversed, with costs of the appeal to the appellants, and new trial ordered.


author: Hardin, P. J.

text:
    Lydia H. Cross, Resp’t, v. City of Elmira, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Municipal corporation — Notice op claim.
    The notice of claim against a municipal corporation should give the time, place and circumstances with reasonable accuracy, so as to enable the officers, charged with the duty of investigating, to determine whether the claim is meritorious.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Plaintiff’s complaint states that defendant was guilty of negligence in “ neglecting to perform the powers, and, failing to perform its said duties, that defendant, through and by its officers and agents, negligently permitted and suffered the plank sidewalk on the north side of East Washington avenue, between Pratt and Oak streets, the said street being a public highway of said city on the 21st day of October, 1891, to be and remain in a rotten, decayed, defective and dangerous condition; some of the planks therein having become decayed to such an extent as to leave large holes in the said walk, and other planks therein having been entirely removed therefrom, thereby leaving large holes and openings in said walk. Into one of such holes, on the evening of the said 21st day of October, 1891, the plaintiff, then and now an inhabitant of said city, while lawfully and carefully walking on said sidewalk, without negligence on her part, stepped, and was thereby violently precipitated and thrown upon the adjoining concrete walk or ground because of the aforesaid negligence of the defendant, as aforesaid.” The complaint states the damges sustained by the plaintiff, and that she was “injured in her person, both of her knees and kneepans being seriously bruised and injured; and she was in all respects greatly hurt, bruised and wounded, and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to wit, during all the time since the happening of said accident, and is still so disabled at the commencement of this action, during all of which time plaintiff has suffered great and severe pain, suffering and injury, and has been hindered and prevented from performing and .transacting her necessary affairs and business.” The complaint • also alleged that she had been obliged to and did necessarily pay, lay out and expend, and become liable for the payment of, large sums of money in and about endeavoring to be cured. Her complaint also alleged that “within three months of the happening of such injury, and more than before the1 commencement of this a verified claim for damage was presented by and in behalf of the plaintiff to the mayor of said city, and presented for payment to the common council.” Defendant's answer admits that it is a municipal corporation created under and by virtue of an act of the legislature, as alleged in the complaint. It contains several denials, and an averment “ that the plaintiff, by her own negligence and carelessness, contributed to the alleged injury.”

      James Bacon, for app’lt; Knipp & Clarke and R. R. Moss, for resp’t.
   Hardin, P. J.

October 21,1891, the plaintiff passed northerly -on Oak street, until she reached the north side of East Washington avenue; and, while passing between Oak ■ street and Pratt street, she stepped into a hole in the plank, and fell on the cement walk, striking upon both of her knees, and received the injuries mentioned in her complaint, and minutely described in the evidence, given at the trial. There was no sidewalk at the time on the south side of East Washington avenue batween Oak and Sullivan streets, which is the street next east of Pratt street. As the plaintiff passed along the sidewalk, she knew there were holes in it, and she testified that she went carefully along; and, when she stepped into the hole, she was pitched forward, and struck her knees on the tar walk, which joined on the plank walk. The hole which she fell into was about six inches from the end of the tar walk, and she testifies that, when she fell, she, hurt her knees badly. Abundant evidence was given tending to show that the walk at and near the place where she received the injuries was out of repair, and had been so for a year or more. While the plaintiff was giving evidence as to the defective condition of the walk in question, the court inquired of the defendant’s counsel, viz.: “I understand you don’t make any serious contention as to the condition of the walk;” and the defendant’s counsel, in response thereto, said: “We cannot help but concede that this walk was somewhat out of repair.” In the course of the charge the court observed : “ The defendant here has practically made no contest at .all upon the condition of this walk, or the length of time it had been there. Therefore, gentlemen, you will take little time to pass upon the question of the defendant’s negligence, inasmuch as the defendant’s attorney does not here contest it.” Ho exception was taken to that part of the charge. Upon all the evidence furnished by the plaintiff, it was proper for the court to submit the question of her freedom from contributory negligence, as one of fact, to the jury. Dale v. City of Syracuse, 71 Hun, 449 ; 54 St. Rep. 381; Beltz v. City of Yonkers, 74 Hun, 73; 56 St. Rep. 205; Sherman v. Village of Oneonta, 49 St. Rep. 267; 21 N.Y. Supp. 137; affirmed, 142 N. Y. 637; 60 St. Rep. 867; Leopold v. Canal Co., 74 Hun, 137; 56 St Rep. 889.

2. By several motions for nonsuit, and by objections and exceptions to evidence, the appellant raised the question upon the trial as to the sufficiency of the notice of her claim given to the -city, which the statute requires as a condition precedent to the right to maintain the action.

In chapter 535 of the Laws of 1884, at page 649, the ninety-ninth section of the charter of the appellant was amended so as to read as follows:

“All claims against the city for damages or injury alleged to have arisen from the defective, unsafe or dangerous condition of any street, highway, bridge, culvert, sidewalk or crosswalk of or in said city, or from negligence of the city authorities in respect to any such street, highway, bridge, culvert, sidewalk or crosswalk, shall, within three months after the happening of such damage or injury, be presented by or in behalf of such claimant to the mayor or city attorney in writing, signed by the claimant or his agent or representative attorney and duly verified by one of such parties, describing the time and location of the place where such injury occurred, cause and extent of the damage or injury. The omission to present such claim as aforesaid within said three months shall be a bar to any action or proceeding therefor against the city."

It appears by the evidence that the distance between Oak street and Pratt street is about 368 feet, and that on the north side of East Washington avenue there was a plank sidewalk for about a distance of 150 feet. The notice given by the plaintiff was to the effect “that while walking eastward on the plank sidewalk on the north side of East Washington avenue, between Oak and Pratt streets, in said city, I (she) stepped into a hole in the said sidewalk, which had been negligently permitted to be and remain therein, and the said sidewalk then being in a defective, unsafe, and dangerous condition." It was contended at the trial in behalf of the defendant that the notice was too general, and, in response to such contention, considerable evidence was received, tending to show that the defendant was not misled by the language used in the notice; and, at the close of the evidence, when the question was again brought to the attention of the court as to the sufficiency of the notice, the judge inquired of the counsel for the defendant, viz.: “Do you desire me to submit to the jury the question as to whether the city was misled ?" And the defendant’s counsel responded, “Ea, sir.” After some discussion between the court and counsel, the judge again observed : “Do you desire to go to the jury upon the question as to whether they were misled by the generality of tlie notice?" And the answer of the defendant’s counsel was, “Ea, sir.” And in the course of the ruling made by the court in refusing to nonsuit, upon the ground that the notice was insufficient, the court observed to the defendant’s counsel, viz.: “If you desire to, I will submit to the jury the question as to whether the city was misled by the general nature of that claim. If you don’t care for that, then I will hold, as a matter of law, that the notice of the claim is sufficient, and submit the case to the jury upon the other question.” To that ruling the defendant’s counsel took an exception. The language used in the defendant’s charter differs slightly from the language found in the charter of the city of Syracuse, referred to in Paddock v. Oity of Syracuse, 61 Hun, 8 ; 39 St. Rep. 662. In that case the written notice was required to be given, “specifying the time, place, and cause of such injury and, according to the language in the statute now before us, the notice is to be given, “describing the time and location of the place where the injury occurred.” In the Paddock Case, the case of Noonan v. City of Lawrence, 130 Mass. 161, was referred to, which stated:

“The notice must, to be sufficient, be so reasonably specific as to time, place, and cause as to be substantial assistance to the proper authorities in investigating the question of their liability.”

And the conclusion reached in the Paddock Case was that a substantial compliance by the plaintiff with the provisions of the statute was required.

In Sullivan v. City of Syracuse, 77 Hun, 442 ; 60 St. Rep. 674,. a notice that had been given fell under consideration, and it was-in effect held that a substantial compliance by the plaintiff with the provisions of the statute was sufficient.

In Werner v. City of Rochester, 77 Hun, 35 ; 59 St Rep. 439, where a similar question was presented, Haight, J., said :

“This statute should receive a reasonable construction. The time, place, and circumstances should be given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred.”

In view of all the circumstances disclosed by the evidence, we are of the opinion that the ruling of the trial judge to the effect that the notice was sufficient ought not to be disturbed.

3. We think the evidence presented a question of fact for the jury to determine whether the injuries which the plaintiff received caused traumatic synovitis. While there was a conflict relating to the question as to whether the condition in which she was weeks' and months after the injury was attributable to the injuries which she received, or whether it arose by reason of her being afflicted with rheumatism, we think the question of facts was one proper to be determined by the jury, and was carefully presented to the jury by the trial judge, and that their verdict on that subject should be approved.

4. Prior to the accident, the plaintiff, a woman of about thirty-three years of age, was apparently in a healthy condition, following an occupation in which she was able to earn, by her manual labor, wages. Assuming as we must, that, according to the finding of the jury, the injuries which she received caused the suffering which she was called upon to endure by reason of the loss of the use of her knees, and causing them to be swollen, and her legs to be comparatively useless, after suffering from treatment at home and in hospital, and the necessary expense in procuring the same,, and being subjected repeatedly to blisters and cauterizations, which have been found insufficient to work restoration to her of the usefulness of her limbs, leaving her in a condition that she has been obliged to use crutches, and is incapable of standing upright to ascend stairs, or to stoop or to bend her knees, and compelling her to lose her employment and opportunity to earn wages, as was was shown by the evidence, we are of the opinion that the court properly refused to grant a new trial on the ground that the damages were excessive. Vail v. Railroad Co., 6 Misc. Rep. 20; 58 St. Rep. 124; Morris v. Railroad Co., 73 Hun, 560 ; 56 St. Rep. 231; Demond v. Railroad Co., 8 Misc. Rep. 610; 60 St. Rep. 824 ; Fox v. Railroad Co., 7 Misc. Rep. 285 ; 58 St. Rep. 540 ; Wilson v. Railroad Co., 8 Misc. Rep. 450 ; 60 St. Rep. 60; Walsh v. Railrood Co., 78 Hun, 1; 60 St. Rep. 539; Stephens v. Knitting Co., 48 St. Rep. 814; Gale v. Railroad Co., 13 Hun, 1; Scott v. Association, 74 Hun, 284; 56 St. Rep. 419.

Judgment and order affirmed, with costs.

All concur.


author:
Hardin, P. J.
      Merwin, J. Martin, J.

text:
    Benjamin F. Edsall, Resp’t, v. John L. Howell, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Highways — Planting trees.
    Chapter 93 of 1863 authorized abutting owners to plant shade trees in the highway, without regard to the ownership of the fee.
    S. Same.
    The saving clause in the act of 1890 is sufficient to protect such owner and to secure to him, as against the public or public officers, the right to the continuance of the growth of the trees.
    3. Same — Title to street.
    A deed, which describes the premises conveyed as “on” a certain street, will be presumed to pass the title to the center of the street to the grantee.
    4. Damages — Cutting shade tree.
    The measure of damages for cutting a shade tree is the difference between the value of the land before and after the tree was cut.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    The plaintiff’s complaint alleges that the defendant, in January, 1893, “was and had been the owner of a certain shade tree, viz. a maple tree, standing in and upon a certain strip of land in the town of Hichols, in the county of Tioga, 1ST. Y.; the said strip of land being a public highway of the said town, and the said tree standing in front of certain premises or lands owned by the plaintiff during all the times above referred to, and which said lands and premises were fronting on the said highway. * * * The defendant without permission or license of plaintiff, the owner, or of any proper officer or person, but wilfully, wrongfully, and unlawfully entered in and upon the said highway and in front of the plaintiff’s said premises, and then and there wilfully, wrongfully, unnecessarily cut, sawed, girdled, despoiled, injured, and destroyed the said tree, to the plaintiff’s actual damage of the sum of $65.00.” Defendant in his answer stated “that the maple tree mentioned in the plaintiff’s complaint is situate upon the border of a highway, .the freehold or fee title of which is in defendant, and defendant was seized of the same, and that defendant had reasonable grounds to suppose that he was the owner of and seized of said maple tree, and whatever the defendant did in the premises was done supposing and believing that he was the owner thereof.”

      S. J. Ohart and M. S. Lynch, for app’l't; O. B. Glezen, for resp’t.
   Hardin, P. J.

March 30, 1867, John L- Howell,, the defendant, made application to the commissioner of highways of the town of Hichols, in writing, to lay out a highway in the town according to a line indicated by a survey and a map, in which application it was stated that the highway “will pass through the improved lands of Peter Joslin, Oliver A. Barstow, and John L. Howell, the subscriber.” It was stated in the application, viz.:

“Bach and every one of such owners consenting to the laying out of such highway; and I, the said John L. Howell, do hereby consent to the opening and laying out of said highway in so far as the same crosses over or enters upon the land or any lands owned by me; and I do dedicate to the people of the state of Hew York the use of so much of my said lands as is included within the bounds of said highway for the purposes of public travel; and I do hereby release to the said people all my claims to damages by reason of the opening or laying out of such highway, and authorize the said commissioners to lay out and work the same.”

Subjoined to that application was the consent, signed by Peter Joslin and Oliver A. Barstow—

“The ones having the legal title to the lands hereinafter alluded to, and the latter, being interested therein as made in a written contract of sale therefor, do hereby consent to the opening and laying out of the highways which are described and mapped out in the survey and order thereto annexed, in so far as the same crosses over or enters upon any land owned by us or either of us,, or in which we or either of us are or is interested; and we do hereby dedicate to the people of the state of Hew York the use of such portions of our said land as is included within the bounds of said highway for the purpose of public travel (page 43); and we do hereby further release to the people of the state of Hew York all our and each of our claims to damages by reason of the laying out and opening of such highway, or enters our said lands by the said order hereto annexed, and authorize the commissioner to open and work the same.”

Upon receiving the several papers so signed, the commissioner of highways made an order that a public highway be, “and the same hereby is, laid out, pursuant to such application and determination, whereof a survey hath been made”; and in his order particularly described the proposed highway, which order he signed on the 19th day of April, 1867. On the 1st day of June, 1867, Edsall, the plaintiff, entered into a contract with C. B. Bar-stow and O. A. Bsrstow, to purchase of them :

“All that lot of land in the village of Hichols known as lot Ho. one, on the corner of Howell and Walnut streets (so called), as laid down and described in a map and survey made by S. Dexter on the 27th of May. 1867; said lot being, according to said map., 132 feet on Howell street, by 82 £ feet on Walnut street, and containing about one-quarter acre of land.”

In pursuance of that contract, Edsall, the plaintiff, on the 16th day of February, 1869, took a deed of the premises from the Barstows, in which deed the lands acquired by the plaintiff were described as follows:

“All that tract or parcel of land situate in the town of Nichols, in the county aforesaid, known as lot No. 1, on the corner of Howell and Walnut streets (so called), as laid down and described in a map and survey made by S. Dexter on the twenty-seventh day of May, 1867; said lot being, according to said map, 132 feet on Howell street, by 82£ feet on Walnut street, and containing about one-fourth acre of land.”

The plaintiff went into possession of the land so purchased after receiving the contract, aud continued in possession down to the time of the trial. In 1868, in front of his premises, he set out some maple trees, and the most easterly tree was the one which the defendant cut. It was about a foot west of the plaintiff’s east line, if the east line of his lot be continued to the center of the street.

Chapter 93 of the laws of 1863 provided, viz.:

“All persons owning lands fronting upon any highway, (excepfc in cities and incorporated villages), may make and have sidewalks along such land in the highway and plant and have shade trees along the roadside of such sidewalks; such sidewalks with shade trees shall not extend' more than six feet in width from the outward line of such highway; provided such highway is not over three rods wide, with the right to add one additional foot in width to such sidewalk for every additional rod in width of such highway where such sidewalks may or shall be built or shade trees planted, and for the protection of such walks or trees may also construct a railing upon the roadside adjacent and within two and a half feet of such trees or walks, of not more than one bar in height with posts, and also protectives at the ends in such way or manner as not to prevent foot passengers from using such walks, but so built as may and shall prevent cattle from going thereon.”

While that law was in force, to wit, in 1868, the plaintiff set out the tree in question. Although chapter 93 of the laws of 1863 was repealed by chapter 568 of the laws of 1890, relating to highways, section 181 of the act of 1890 contained a saving clause in the following language:

“The repeal of a law, or any part of it specified in the annexed schedule, shall not affect or impair any act done, or right accruing, accrued, or acquired, or penalty, forfeiture, or punishment incurred prior to the time when this act takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prosecuted, or inflicted, as fully and to the same extent, as if such laws had not been repealed.”

So far as the public easement or the public use of the highway was concerned, the statute of 1863 operated as against the public to authorize the plaintiff to plant the tree in question; and we are inclined to think the saving clause found in the statue of 1890 was sufficient to protect him as against the public or public officers, and to> secure to him as against the public or the public officers the right to the continuance of the growth of the tree. Considering the contract which he received when he purchased the lot, and the deed which he subsequently received therefor, and the description therein found, we are inclined to think that the rule of law obtained that gave him the ownership to the center of the street, subject, however, to the public easement. Village of Lancaster v. Richardson, 4 Lans. 136; Bissell v. Railroad Co., 23 N. Y. 61; Wiggins v. McCleary, 49 N. Y. 346.

In Hennesy v. Murdock, 137 N. Y. 323; 50 St. Rep. 717, it was said:

“ The use of the fee of the bed of the street is so inseparably connected with the ordinary use of an adjacent lot that a severance of the two will not be deemed to have been affected unless the presumption that the grantor intended to pass title to the center of the street is rebutted by other parts of the deed, and by the condition and relations of the parties to the lands conveyed and the other lands in the vicinity.”

That case cites with approval Mott v. Mott, 68 N. Y. 246.

2. We are of the opinion that the complaint sufficiently set out the ownership of the tree in question; and that the defendant willfully, wrongfully, and unlawfully “ cut, sawed, girdled, despoiled, injured, and destroyed the said tree”; and that the evidence given under the complaint tended to support the allegation. The plaintiff testified that he set the tree out in the spring of 1868, in front of his lot, and that it has “stood there ever since.” He testified that his lot was worth before the tree was cut $1,500, and that immediately after the tree was cut it was worth $1,425 ; and he added that he was of the opinion that it depreciated the value of his lot $75. The witness Merrill testified that it always was a thrifty tree, and that there were no dead limbs on it before it was cut and that he was acquainted with the value of the real estate ; and then, against the defendant’s objection, he was permitted to state the value of the house and lot as it stood previous to the cutting of the tree, and the value of it afterwards, making, according to his opinion, a difference of $50. We think no error was committed in receiving the evidence. McCruden v. Railroad Co., 5 Misc. Rep. 64; Evans v Gas Co., 25 N. Y. Supp. 191. The question of damages was alluded to by this court in delivering the opinion in Nixon v. Stillwell, 52 Hun, 353; 23 St. Rep. 474; and that case seems to be referred to with approbation in Dwight v. Railroad Co., 132 N. Y. 203 ; 43 St. Rep. 723. Since those cases were determined, the question has been considered in Hartshorn v. Chaddoch. 135 N. Y. 122; 47 St. Rep. 838. Applying the rule stated in the case lust cited to the case in hand, we are of the opinion that we ought not to disturb the verdict on the question of damages. The case of Wood v. Lafayette, 68 N. Y. 181, is quite unlike the case before us, and does not aid the contention of the appellant. We see nothing in Robert v. Sadler, 104 N. Y. 229 ; 5 St. Rep. 594, justifying the act of the defendant in despoiling the tree of the plaintiff standing adjacent to the premises. Judgment and order affirmed, with costs.

Merwin, J.

(concurring). — The point relied on by the defendant is that he was the owner of the fee, and therefore had the right to cut down the tree. Does the conclusion follow from the premise ? The law of 1863 was in force at the time the defendant and those from whom he holds petitioned for the highway and released their damages. Presumptively they knew that, as the law then stood, an adjoining owner had the right to have sidewalks and plant shade trees on the side of the street. The dedication and release are presumed to have been made in view of this right, and coextensive with the use to which such highway might by law be devoted. Griffin v. Martin, 7 Barb. 297; Hardenburgh v. Lockwood, 25 id. 9. The setting out of trees along the side of a highway had from time immemorial been recognized as a proper use of a highway. 2 Rev. Laws 1813, p. 279, chap. 33. § 29; 2 Rev. St. (8th ed.) p. 1398, § 127. The right given by the law of 1863, is not, I think, limited to those adjoining owners who own the fee. The language of that act is general, and its plain object would not be attained by limiting its effect to one class of owners. The right to plant shade trees goes with the right to have sidewalks. I am of the opinion that the defendant, although the owner of the fee, had no right to cut down the tree. I, therefore, vote for affirmance.

Martin, J.

(dissenting). — This case was tried and submitted to the jury upon the theory that the defendant was the owner in fee of the land upon which the tree in question stood. When the case is examined upon that theory, the only question which bears upon the plaintiff’s right to maintain this action is whether he could recover for cutting the tree upon lands to which the defendant had the title, although it was in the highway in front of the plaintiff’s premises. At common law the owner of the fee over which a highway is laid has all the usual rights and remedies of the owner of a freehold, and, as such, has the exclusive right to the soil and its productions, including the herbage and trees, subject only to the easement or right of passage over it by the public and the incidental right of properly fitting the way for use. Elliott, Roads & S. 519, and cases cited; Bliss v. Johnson, 73 N. Y. 529, 533. Hence it is manifest that the plaintiff had no right to plant the tree in question upon the defendant’s land, or to maintain it there without his consent, unless there is some statute which has conferred that right

The only statute which it is claimed or pretended has any application in this case is chapter 93 of the Laws of 1863, which provided :

“ All persons owning lands fronting upon any highway, (except in cities and incorporated villages,) may make and have sidewalks along such land in the highway and plant and have shade trees along the roadside of such sidewalks.”

It was in effect held by the court below that this statute conferred upon the plaintiff the right to plant trees upon the land of the defendant in the public highway which the plaintiff’s lands fronted, and that he so far became the owner of the tree, and -entitled to the use of the defendant’s land to maintain it, as to make him a trespasser in cutting it. If this be true, I can see no reason why the same rule would not apply to any case where the statute has provided that the highway may be used for other than highway purposes, including telegraph and telephone lines and street- and steam railways. The weight of authority, however, is to the effect that, where the fee is in an abutting owner, the appropriation of a street for the use of a steam railway is a new and additional burden, for which the abutter is entitled to compensation. Williams v. Railroad Co., 16 N. Y. 97; Mahon v. Railroad Co., 24 id. 658; Henderson v. Railroad Co., 78 id. 432. The same principle is applicable in case of a horse railroad, Craig v. Railroad Co., 39 N. Y. 404; and to the setting of poles in the street-upon the land of an abutting owner, by a telephone or telegraph company. Dusenbury v. Telegraph Co., 11 Abb. N. C. 440 ; Metropolitan Telephone, etc., Co., v. Colwell Lead Co., 67 How. Pr. 365 ; Johnson v. Electric Co., 54 Hun, 469; 28 St. Rep. 295; Telegraph Co. v. Barnett, 107 Ill. 507; Smith v. Telegraph Co., 2 Ohio Cir. Ut. 259; Willis v. Telephone Co., 37 Minn. 347. So, too, neither public officers nor individuals other than the owner can remove or disturb the soil in the highway, except so far as is necessary for its construction or repair. Robert v. Sadler, 104 N. Y. 229 ; 5 St. Rep. 594.

The statute of 1863 was simply permissive, and was not intended to interfere with or change the property rights of individuals as between themselves. I am of the opinion that a proper construction of this statute requires us to hold that its purpose was-to give the abutting owners the right to plant trees upon highways where the title to the land was in them, or perhaps where the title was in the public, and that it ought not to be construed as vesting authority in the owner of abutting land to appropriate the adjoining land of his neighbor to ins own use for that purpose. The construction is consistent with the rights of all parties, while an opposite one would be inconsistent with the rights of a landowner, and render the constitutionality of the statute doubtful. Such a construction should not obtain. The presumption is that the legislature did not intend to violate the constitution, and the •statute should be so construed as to uphold its validity and maintain the common-law rights of the defendant

Nor can I concur in the conclusion that this court should assume that the plaintiff had title to the land to the center of the highway, upon the theory that the law presumes that the conveyance to the plaintiff passed the title to the center, because it was bounded by the highway. It was practically conceded upon the argument, as well as upon the trial, that the title to the land was in the defendant. The respondent does not dispute this proposition. If there had been any contest over this question, it may ■ well be that the defendant would have proved that the condition and relations of the parties and the situation of the land were such as to completely repel and overcome such presumption. The evidence fails to show that the plaintiff’s grantors ever had any title to or interest in the land over which this'portion of the highway was laid. If his grantors had no title, it is difficult to imagine how the defendant’s title could be divested by such a presumption, when the conveyance was between other parties who had no title whatever to the land in question. The question whether the title passes to the center where lauds conveyed are bounded by a highway is one of intent, and the intent is to be gathered from the description of the premises in connection with other parts of the grant, and by reference to the situation of the land and the condition and relations of the parties to the land conveyed and other lands in the vicinity. Mott v. Mott, 68 N. Y. 246. Moreover, this presumption has no existence where the grantor is not the owner of the fee of the land in the highway. 2 Devl. Deeds, § 1024.

I am of the opinion that the court erred in charging the jury that the defendant was liable, although the owner of the land. Village of Lancaster v. Richardson, 4 Lans. 136, and that for such error the judgment should be reversed.


text:
    George J. West, as Executor, etc., Resp’t, v. George H. Wright et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Appeal — Case—Certificate.
    In the absence of a statement in the appeal book that the case contains all the evidence taken at the trial, the respondent is entitled to rely on the assumption that there is no intention to ask a review of the rulings on the questions of fact.

      2. Contract — Void—Wager.
    An agreement for the sale and purchase of property, with the understanding that the property itself should not be delivered but that only the difference in the market price should be paid or received, is a wager on the future market price and void.
    3. Same — Who liable.
    Section 9 of 1R. S. 962, imposes the liability, in such case, only upon the persons to whom the money shall be paid.
    4. Same — Parol evidence.
    Parol evidence is admissible to show that such was the understanding between the parties when the order was given.
    Appeal from a judgment in favor of plaintiff.
    The action was brought December 15, 1888, by the deceased, to recover money alleged to have been paid on a wager contract. The answer contained a denial of the allegations of the complaint. On the 18th of December, 1888, West, the original plaintiff, entered the Binghamton office of the Central City Stock & Grain Exchange of Syracuse, Limited, and gave an order to sell 200 shares of St. Paul, and took a ticket, which stated that he had sold to the Central City Stock & Grain Exchange of Syracuse, Limited, 200 shares of St. Paul. The same day he sold another 100 shares of St. Paul. The 200 shares were sold at 62$ and the 100 shares at 62$. At the time of the transactions just mentioned he had no stock. It is claimed that the $1,800 which he paid was deposited to the credit of George H. Wright, treasurer of the Central City Stock & Grain Exchange of Syracuse, Limited. The papers which were used by the parties represented that George H Wright was secretary and treasurer. Subsequently West demanded back the $1,800, and the demand was refused, and he brought this action to recover the same. Defendants Bennett and Fisher allege that in '.September, 1888, at the time of the transaction had with West they were not members of the Central City Stock & Grain Exchange of Syracuse, Limited. The referee found as matter of fact “that during the month of September, 1888, the defendants Conrad J. Fisher and James 0. Bennett were not members of the Central City Grain-& Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.” Among his conclusions of law he found, viz: “ that, as to plaintiff defendant were partners in September, 1888, when transactions in suit took place"; - and he ordered judgment in favor of the plaintiff against all of the defendants for the sum of $1,800, with interest from December 17, 1888. Exceptions were taken to several findings of fact and to conclusions of law stated by the referee.

      E. C. Wright, for app'lt; E. K. Clark, for resp’t.
   Hardin, P. J.

No certificate is found in the appeal book that the case contains all the evidence taken at the trial. In the absence of such a statement, the respondent is entitled to rely on the assumption that there was no intention to ask a review of the rulings on the question of fact. Porter v. Smith, 35 Hun, 118 ; affirmed, 107 N. Y. 531; 12 St. Rep. 479 ; Halpin v. Insurance Co., 118 N. Y. 171; 28 St. Rep. 788; Goodrich v. Gillies, 62 Hun, 479; 42 St. Rep. 319. In Dibble v. Dimick, 143 N. Y. 555; 62 St Rep. 798, it is said : “ It is now well settled that, where the party appealing desires the court to review the facts, he must insert in the record a statement that it contains all the evidence, or all that is material to the question sought to be reviewed.” In Halpin v. Insurance Co., 118 N. Y. 171; 28 St. Rep. 788, it was held that, where there is a finding of fact by a court or referee, without evidence to support it, it is a ruling upon the question of law, and, if excepted to, presents a legal question. That case seems to reassert the doctrine laid down in Spence v. Chambers, 39 Hun, 193. Section 993 of the Code provides that a “finding without any evidence tending to sustain it, is a ruling upon a question of law.” In Travis v. Travis, 122 N. Y. 453; 34 St. Rep. 42, the section was construed, and in that case it appeared: “ No exception was taken to any finding of fact, so as to raise the question of law that there was no evidence tending to sustain it.”

The referee found that the money paid by the plaintiff into the _ Binghamton office was deposited in the City National Bank of Binghamton to the credit of the Central City Stock & Grain Exchange of Syracuse, Limited, in the name of George H. Wright, treasurer; and it is claimed by the appellants that that finding is not supported by evidence. According to the testimony given by the plaintiff’s witness Seymour, the course of business between the Binghamton office and the Syracuse office was stated in detail. He states that he remembers Webb paying in about $1,800, and that “ whatever was due it was deposited to their credit,” — that is, to the credit of the Syracuse office; and the books that were kept at the time corroborate the statement made by the witness. The witness referred to a statement of September 18th, that came to the Binghamton office from the Syracuse office, after the transaction of September 18th ; and he says that that statement shows the two transactions mentioned by the plaintiff in his testimony ; and a further statement was produced, indicating what was called for on the 19th of September to be deposited to the credit of the Syracuse office. The testimony already referred to, and the further testimony offered by the plaintiff, when read in connection with the testimony given by the defendants, we think sufficiently justified the finding that the money paid by the plaintiff was passed to the credit, and received by the Syracuse office. Hannigan v. Allen, 127 N. Y. 640 ; 37 St. Rep. 138.

It was found as matter of fact by the referee “ that during the month of September, 1888, the defendants Conrad J. Fisher and James 0. Bennett were not members of the Central City Crain & Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.” Bennett testified that in the year 1888 he was not in business in Syracuse prior to October 11th of that year. And Wright testifies that during the month of September Bennett and Fisher were not in the concern.” We find in the case no satisfactory evidence indicative that Fisher and Bennett actually received the money paid over and advanced by the plaintiff. When the plaintiff entered into the transaction, it was with the understanding that the propertjr should not be delivered, and that only the difference in the market should be paid or received; and the transaction was, therefore, a wager on future market price, and void under the statute. Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 N. Y. 420. Parol evidence was admissible and was received to show that the real understanding between the parties when the orders were given was that the property should not be delivered, but that only the differences in the market price should be paid or received. Peck v. Doran S. Wright Co., 57 Hun, 343; 32 St. Rep. 405 ; Dwight v. Badgley, 38 St. Rep. 112 ; Kenyon v. Luther, 19 id. 32; Amsden v. Jacobs, 58 id. 196. The statute which has been construed in the cases to which reference has been made provides that any person who shall deliver or deposit any money upon the event of any wager may sue for and recover the same of the winner, “ or persons to whom the same shall be paid or delivered.” 1 Rev. St. p. 962, § 9. And it is contended by the appellants that Bennett and Fisher are not liable, because they were not, in fact, at the time West paid in his money, in September, 1888, partners or members of the firm which carried on the business under the name of the Central City Stock & Grain Exchange, Limited. To escape the force of that contention, it is claimed in behalf of the respondent that Mr. West had dealings with the parties in 1886, and that he was informed that Bennett and Fisher were connected with the Syracuse office. The evidence on that subject is not very definite or certain. It seems that West received some information upon the subject of the connection of Bennett and .Fisher with the Syracuse office at that time, but a fair consideration of the whole evidence would seem to justify the conclusion that the time West had a transaction in 1886 with the Syracuse office, Bennett and Fisher were not in fact connected with "the business earned on in the Syracuse office. We think the evidence is insufficient to warrant the application of the rule contended for by the respondent, to the effect that, once having been partners, the liability as such partners continues until notice is given of their retirement from the partnership, according to the rule laid down in Elmira I & S. Rolling Mill Co. v. Harris, 124N. Y. 280 ; 35 St. Rep. 343. So far as the contention of Bennett and Fisher, to the effect that they did not actually receive the money that was parted with by West in September, 1888, is concerned, .we think a reasonable view of the evidence requires us to say that they were not recipients of the money, and therefore not liable under the statute, which imposes the liability upon the “persons to whom the same shall be paid.” In Weyburn v. White, 22 Barb. 82, it is said that the right of action to recover back money paid in pursuance of a wager depends wholly on the statute, and that no remedy was allowed by the common law, and that the liability of a party to return the money is “in the nature of a penalty or forfeiture for the benefit of the party aggrieved.” West, in the course of his cross-examination, testifies to dealings he had with the Binghamton office in December, 1886, and Bennett testifies that he was in business in the Syracuse office until October, 1886. Fisher testifies that he and Bennett withdrew from the firm, having sold their interest to Wright, and that this change took place in the latter part of the year 1886, and that from that time, in 1886, and during the whole of the year 1887, and until October, 1888, he had no interest in the firm, and nothing to do with it, and that he had no business relation or connection with it during that time whatever. We think the evidence insufficient to maintain the position 'that the plaintiff’s money was received by Fisher and Bennett, and as to them we think the evidence fails to establish a cause of action under the statute upon which the plaintiff’s right to recover rests. If the foregoing views are correct, the judgment as to Bennett and Fisher is erroneous, and as to them should be reversed. We have found no prejudicial error in the case as against the defendant Wright. Judgment as to Bennett and Fisher reversed, and a new trial ordered, with costs to abide the event. Judgment appealed from, as to Wright, affirmed, with costs. All concur.