author: Bradley, J.

text:
    William R. McLaughlin et al., App’lts, v. Ira O. Miller, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 7, 1891.)

    Deeds—Covenant against incumbbances—Taxes.
    Prior to the delivery of the deed in question a public improvement had been authorized by the legislature, a portion of the expense of which was tobe “assessed equally upon the lands fronting upon said avenue when so widened,” one-twentieth thereof to be added to the tax in each year for twenty years. Held, that as the legislature did not apportion the assessment but declared that it should be so apportioned as to produce equality upon the lands, it called for a determination, in some sense judicial, as to-the method in which it was to be done, and that the yearly instalment did not become a lien upon the lands conveyed until, in each year, the city assessors had made the usual annual assessment, and was not an incumbrance within the meaning of a covenant against liens or incumbrances in. the deed.
    Appeal from judgment of the general term of the supreme court in the second judicial départment, affirming judgment entered on decision of the court dismissing the complaint.

      Tunis Q. Bergen, for app’lts; Alfred M Mudge, for resp’t.

       Affirming 33 N. Y. State Rep., 1043.

   Bradley, J.

In July, 1872, the defendant, by deed conveying to the plaintiffs’ testator four lots fronting on Fourth avenue in the city of Brooklyn, covenanted that they were free from all “ charges, estates, judgments, taxes, assessments and incumbrances," except a mortgage therein mentioned. This action was founded upon the alleged breach that at the time of the delivery of the deed the premises were encumbered by an assessment before then made upon them for a portion of the expense of widening and improving that avenue; and that to relieve the property from such-charge the plaintiff was required to and did pay upwards of $700. The improvement was made pursuant to several acts of the legislature, and was completed in the summer of 1870, about two years, prior to the conveyance.

By the statute upon the subject, it was provided that after the -completion of the improvement the sum of $150,000 of its cost should be “ assessed equally upon the lands fronting upon said avenue when so widened,” except so far as any of them were by the contract exempted from assessment; and that such assessment, “ unless previously paid,” should, with interest thereon, be included in the annual taxes to be levied upon such lands, and one-twentieth part of such assessments be levied and collected annually for twenty succesive years, beginning with the year after the comple.tion of the improvement Laws 1861, chap. 299, § 6. The controversy between the parties has relation only to the portion of the sum before mentioned chargeable to the lots in question. The further sums of $150,000, provided for by Laws of 1869, chap. 759, § 2, and $25,000, by Laws of 1870, chap. 608, § 2, were to be assessed immediately on completion of the work.

The defendant paid the taxes on those four lots for 1870 and the amounts included in the general taxes in the rolls for the Fourth avenue improvement down to the time of the delivery of the deed to the plaintiffs’ testator, and the latter paid the amounts included in the subsequent tax rolls for that improvement, and interest. The sum designated in the assessment roll for the Eighth ward, in which was situated these lots, as the portion of the sum first mentioned chargeable upon them was $550.12. The question now presented is whether the amount of it remaining at that time unpaid was a lien or incumbrance upon the lots at the time the deed was .delivered. After the completion of the work proceedings may have been taken to apportion the $150,000 upon lands fronting on the avenue with a view to the levy of the instalments for the next year and each of the twenty years unless -sooner paid. For that purpose it would be necessary in the outset to ascertain and fix the amount of that sum chargeable upon those lots. The method of doing this was not prescribed by the statute before referred to other than it was to be assessed equally upon the lands fronting on the avenue. Nor were the officers by whom it was to be done designated in the legislation upon the subject until the act of 1870, providing for the additional $25,000. There it was provided that upon the passage of that act the board of assessors of the city should immediately proceed to assess such sum of $25,000 equally upon the lands fronting on the avenue, together with the amounts theretofore “ authorized to be assessed upon said lands except so far as any of said lands are exempted from assessment.” This statute may be construed as authorizing and directing the assessment of the entire sum of $325,000 upon the lands fronting on the avenue, as soon as practicable after completion of the work, although only one-twentieth of the $150,000 was to be levied and collected in any one year until the full amount of it was collected or paid. The assessment for the purpose of a levy would necessarily constitute an apportionment ; and when legitimately made and the sum chargeable upon those four lots legally ascertained and determined, such amount would seem to have been a charge and incumbrance upon them within the meaning of the covenant in the deed. Harper v. Dowdney, 113 N. Y., 644; 22 N. Y. State Rep., 743; Lathers v. Keogh, 109 N. Y., 583; 16 N. Y. State Rep., 178; De Peyster v. Murphy, 66 N. Y., 622; Dowdney v. Mayor, 54 id., 186.

The contention on the part of the plaintiffs that the total amount of the charge upon these lots for the improvement was ascertained and fixed prior to the delivery of the deed, is founded upon the fact that a sum as such was inserted in the assessment rolls for 1870 and 1871, confirmed by the board of supervisors,, and, with their warrant annexed, delivered to the city tax collector. The assessment roll of 1870 for the Eighth ward, as sent by the city board of assessors to the board of supervisors of Kings county, contained the numbers of these four lots, and opposite them respectively under heading “ Fourth Avenue Improvement" sums aggregating $550.12, and when it, with the warrant, came to the collector there appeared in another column headed “ General Tax,” the annual instalments of such sums with other taxes; and the same may be said of the roll of 1871. In the resolution of the board of supervisors no reference was made to that improvement, but in the warrant the collector was directed to collect a specified amount exceeding $108,000 on account of assessment for Fourth avenue improvement, and a sum mentioned as interest on balance of the assessment. This probably included a portion of the additional sum of $175,000 provided as before mentioned for the work. At the time the assessment roll was confirmed by the board of supervisors it was completed, and in the condition it was when it went to the collector. This, is substantially all that appears as to the manner the apportionment of the cost of the improvement was made, except that it did appear and was found by the court that the amounts inserted against the lots in question as the portion chargeable to them respectively was arrived at by dividing the entire amount of the $150,000 by the number of feet and inches of property fronting on the avenue. And it was further found that there was no evidence that any notice, or opportunity to be heard, was given to the property owners affected, in reference to any assessment for the Fourth avenue improvement If notice was necessary to render the apportionment effectual, it could only have been given pursuant to the provisions in that respect of the city charter relating to assessments, Laws-1854, chap. 384, tit. 4, § 24, as nothing is contained in the special acts providing for the improvement on the subject of notice.

It is, however, said that no judicial or discretionary act was to-be performed by the officers in making the assessment, and, therefore, no notice to the property owners was necessary. And in support of that view it is claimed that the construction of the language of the statute, that the cost of the improvement should be “ assessed equally upon the lands fronting upon the avenue," is such as to confer only the mechanical or clerical duty of dividing the entire amount of the assessment by the number of feet and inches fronting on the aveune, and thus obtaining a unit per foot or inch, and in that manner the means of ascertaining the sum chargeable upon any given lot. The legislative power is ample to provide for a public improvement, and for that purpose to designate the district deemed benefited by it within the municipality where it is to be made and charge the expense of it upon the property in such district, and direct assessments to be made for it there. In re Van Antwerp, 56 N. Y., 261; Spencer v. Merchant, 100 id., 585.

But when the duty of distribution of such expense of the work by assessment upon the several properties within the designated district so charged with the burden is by the legislature devolved upon any board or officer, some provision for notice to the property owners is essential to the validity of the assessment, as without the opportunity to be heard they are denied the benefit of the constitutional guaranty that they shall not be deprived of property without “ due process of law.” This term in its application for the protection of private property as well as personal rights is significant and quite comprehensive. Stuart v. Palmer, 74 N. Y., 183; Remsen v. Wheeler, 105 id., 573; 8 N. Y. State Rep., 202.

The statute in the present case directed that the sum there mentioned be assessed equally upon the lands fronting on the avenue, which extended into or through several wards of the city. The result of the performance of this duty would be an apportionment and the determination of the equality of the assessment upon the several parcels of land within the prescribed limits. And it cannot be held that the land owners affected by it could lawfully be denied the opportunity to be heard at some stage of the proceeding of making or perfecting the assessment.

RTor is the question now one of the correctness of the manner of making the assessment or of its equality as made. ISTor is the inquiry important whether or not it would have resulted any differently if notice had been given to the land owners. The determination of the amount to be assessed upon each lot was left by the legislature to others, and the land owner had the right to be heard and to challenge the manner of executing the statute in making the assessment, and to see that it was correctly accomplished. This, it seems, he had no opportunity furnished by any notice provided by statute to do.

In the cited case of Hagar v. Reclamation District, 111 U. S., 701, there was notice by legal proceedings, as the assessment could only be enforced by such proceedings. But Mr. Justice Field in that case referred to cases where no notice is necessary, and they are those specifically charged by law, such as the tax on animals of a fixed sum per head or on articles of a fixed sum per yard or bushel or gallon, and to taxes in form of licenses to do business of a particular kind or at a particular place.

In the case at bar the legislature did not apportion the assessment or designate the amount which should be charged upon any lot or per foot of the lands on the avenue, but declared that the result of the apportionment should be such as to produce equality of the burden of it upon all such lands. This called for a determination in some sense judicial as to the method which would effectuate that provision of the statute. Upon this subject, as well as that of the correctness of the execution of the statute in relation to making the assessment, the land owners could not lawfully be denied the opportunity to be heard. And in view of the facts as found by the trial court, the amount of the assessment upon the four lots in question was not legally ascertained and determined at the time of the delivery of the deed to the plaintiffs’ testator.

As before mentioned, the duty of making the assessment was by the act of 1870 devolved upon the city board of assessors. The court did not find that it was so done, but, on the contrary, found a state of facts to the effect that there was no evidence that such board made such assessment, and the record before us supports that conclusion. The burden was with the plaintiffs to prove that the assessment had been made and became a charge or incumbrance on the lots at the time of the conveyance.

When it appears that an official act has been done, the regularity of its performance may be presumed, but the presumption of performance of official duty or act which is a jurisdictional prerequisite to further action does not generally arise without the aid of some statute. There is no report or certificate of the board of assessors that they had made the assessment. And the trial court found that there was no evidence produced, other than that contained in its findings, of any assessment or attempt to lay it for the improvement. It is, therefore, difficult, in any view, to see how the assessment can be treated as having been legitimately or effectually apportioned or made. While it apparently may seem equitable that the defendant should have paid the amount of it, because the work was completed and its benefits realized prior to the conveyance, the plaintiffs’ remedy rests wholly upon the covenants in the deed, and recovery was dependent upon breach existing at the time of its delivery and acceptance.

The fact that the defendant paid the instalments prior to the conveyance did not by way of adoption or approval of the assessment conclude him in his defense to the effect that it was not then a charge or incumbrance on the premises.

If these views are .correct, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    Charles B. Linton, Resp’t, v. The Unexcelled Fireworks Company, App’lt.

      (Court of Appeals, Second Division,

      Filed April 7, 1891.)

    1. Master and servant—Evidence—Matters not alleged in pleadings.
    In an action for unjust discharge by an employer, where the answer sets forth specific acts of misconduct and unfaithful services on the part of the servant, the employer cannot he allowed to prove other acts of similar character not alleged in the answer.
    2. Same—Burden of proof.
    The law will not assume that a servant' has been derelict in duty from the fact that his master discharged him, hut upon proof that he was discharged while engaged in the performance of the contract, and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging in his answer the justification of the dismissal.

      Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered upon the verdict of a jury, and also affirming an order denying a motion for a new trial.
    Action to recover damages for breach of a contract of employment by the wrongful discharge of a servant by his master. By a written agreement between the parties, sealed and dated June 8,1887, the plaintiff agreed to faithfully, diligently and to the best of his ability, serve the defendant as superintendent of its pyrotechnic factories from July 14,1887, until December 81,1889, for the sum of $4,000 per year, payable in equal weekly payments. The plaintiff alleged in his complaint that he “ entered upon said service and continued therein until on or about February 6, 1889, when the defendant broke the said contract, and, without right or cause, discharged” him from its said employment, by reason whereof he sustained damages to the amount of $3,367.
    The defendant, by its answer, admitted the contract, but denied that it broke the same, or that it discharged the plaintiff without cause, and alleged that “ the plaintiff was discharged by the defendant on or about the 6th of February, 1889, for cause and because said plaintiff broke and violated said contract, and did not fulfill the terms, conditions and obligations ” thereof on his part; that he “ did not faithfully and diligently serve the defendant as superintendent of its factories, and did not fill said position to the best of his ability * * * in this, to witthen followed twelve specifications, separately stated, of acts alleged to have been done by the plaintiff in violation of said agreement, including disobedience of orders, conversion to his own use of defendant’s property, conspiracy against its interest and the like.
    Evidence'was given by the parties tending to sustain the allegations in their respective pleadings, and the jury, upon this conflict of testimony, found for the plaintiff, awarding him all that he claimed.

      Leslie W. Bussell, for app’lt; William J. Gaynor, for resp’t.

       Affirming 32 N. Y. State Rep., 1108. ,

   Vann, J.

Upon the trial of this action the plaintiff read m contract question provided his employment by the defendant until December 31, 1889, proved that he was discharged February 6, 1889, while engaged in the performance thereof, showed that after due effort he could not obtain other employment, and rested. Thereupon the defendant introduced evidence tending to support the twelve specifications of misconduct and unfaithful service on the part of the plaintiff set forth in its answer, and in addition thereto offered to show other acts of misconduct and unfaithful service on his part not alleged in the answer. Exceptions to the ruling of the court excluding this evidence, upon the ground that the facts had not been pleaded, present the main question arising upon this appeal "No effort was made to amend the answer, but the defendant rested, so far as the point under consideration is concerned, upon the strength of its exceptions. The defendant insists that this evidence was competent under its denial of the averment by the plaintiff that the defendant broke the contract, and without right or cause discharged him.

The plaintiff did not wait until the expiration of the period for which he was hired and seek to recover under the contract the wages therein agreed upon, but he commenced this action within a few days after his discharge to recover the damages caused thereby. It was necessary for him to aver and prove that he was discharged before his term of service as provided by the contract had expired, but it was not necessary that he should, specifically or in express terms, aver or prove that he was discharged without cause, as a discharge before the determination of the stipulated period was prima facie a violation of the agreement.

The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof that he was discharged while engaged in the performance of the contract and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense confesses the contract and the discharge, but avoids the cause of action by showing new matter, which, by the command of the statute, must be pleaded. Code Civ. Pro., § 500; Code Pro., § 149 ; McKyring v. Bull, 16 N. Y., 297.

Any other rule, as was said by this court in the case cited, would “ lead to surprises upon the trial, or to an unnecessary extent of preparation.” A general, or a specific denial, controverts only “ material ” allegations or such facts as the plaintiff would be compelled to prove to establish his cause of action. Griffin v. L. I. R. R. Co., 101 N. Y., 348, 354; 1 N. Y. State Rep., 56; Fox v. Turner, 17 N. Y. State Rep., 666. It does not put at issue immaterial averments, because the Code does not require that they should be denied. Section 500. The language of the statute is that the answer “ must contain a * * * denial of each material allegation of the complaint controverted by the defendant,” etc. That the plaintiff was discharged before the contract had expired was material. That he was discharged without cause was immaterial, so far as the complaint was concerned, because a recovery could be had without proving it It was sufficient for the plaintiff to allege a violation of the contract by the defendant. His effort to anticipate and deny any possible defense to his cause of action was surplusage. Moreover, the main object of a pleading is to notify the adverse party of the facts relied upon by the pleader to constitute a cause of action or a defense. The improvement sought to be effected by the system of pleading provided by the Code was to enable each party to know precisely what he would be required to prove upon the trial. Accordingly no pleading should be so framed as to mislead or deceive the adverse party by furnishing him only a part of the facts relied upon Yet this would result from the construction of the pleadings in this action contended for by the defendant, because the effect of a denial that the discharge was without cause, in connection with twelve affirmative specifications of good cause for the discharge, would naturally induce the belief that the acts or omissions so specified were all that the plaintiff would be called upon to meet. It was a fair inference that evidence as to other derelictions .Was not embraced by the answer and could not be received.

The defendant could not show, as it tried to, acts of gross immorality on the part of the plaintiff, without suggesting them in the answer, although many other wrongful acts of less importance were alleged with great fullness and precision. A party who has, either intentionally or otherwise, led his adversary to believe that certain enumerated acts only would be proved, will not be permitted to prove other acts of which no notice was given.

In a case recently decided by this court the complaint averred the performance of all the conditions precedent contained in a contract. The answer denied all allegations not thereby admitted and affirmatively alleged that the plaintiff had not performed all the conditions precedent and enumerated certain things which, as it specifically alleged, showed that the conditions had not all been performed.

The court held that although the denial, “if left by itself, might have made an issue as to each condition precedent in the contract,” still the issue was “confined to the particular breaches of condition specifically referred to.” Reed v. Hayt, 19 J. & S., 121, 128; affirmed on the opinion of the general term in 109 N. Y., 659; 17 N. Y. State Rep., 137. That case goes farther than is necessary in the decision of the case in hand, because there the averment that the conditions precedent had all been complied with was a substantive part of the complaint, whereas, here, as we have seen, the allegation that the discharge was without cause was not essential to a recovery by the plaintiff.

We think that the new matter that the defendant sought to prove in confession and avoidance of the contract and the discharge was properly excluded by the trial court upon the ground that it had not been alleged in the answer.

We have examined the other exceptions but find none that require comment.

The judgment should be affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    George T. Newhall, Resp’t, v. William H. Appleton et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 7, 1891.)

    1. Evidence—Contract.
    Where plaintiff brings an action upon an alleged contract with defendants relating to the sale of a serial publication, it is error for the referee to allow a witness, employed by plaintiff under a contract expressed in the same words as that which the latter claims to have with defendants, to declare his understanding of his rights under such contract.
    2. Same.
    It is not error to permit plaintiff to prove that many of the subscribers failed to perform their contracts by reason of the defendants’ delay in making deliveries.

      Appeal from a judgment of the general term of the superior court of the city of New York, which affirmed a judgment entered on the report of a referee.

      William W. Badger, for respondent; B. Winslow Paige, for appellants.

       Reversing 32 N. Y. State Rep., 419.

   Follett, Ch. J.

D. Appleton & Co. were the publishers of Picturesque Europe, Picturesque America, Turner’s Gallery, The American Cyclopedia and The Condensed Cyclopedia. The first two mentioned works were each issued in about sixty monthly parts, at fifty cents a number. Turner’s Gallery was issued in about fifty monthly parts at the same price per number. The American Cyclopedia consisted of sixteen and The Condensed Cyclopedia of four volumes, the latter being sold bound at $7.50 per volume and in parts at fifty cents a number.

Between December 20, 1877, and May 20, 1878, the plaintiff was engaged under an oral contract with D. Appleton & Co. in procuring subscribers for these works in the states of Louisana and Texas.

The plaintiff alleges that by the terms of the oral contract he is entitled" to receive $15.00 for every order obtained for The American Cyclopedia, $6.00 for every order for a bound set of The Condensed. Cyclopedia and $4.00 for every order for the other publications. The defendants contend that by the terms of their contract the plaintiff was entitled to receive $15.00 for every bona fide subscriber for the American Cyclopedia who should accept and pay for five volumes of that work, or $20.00 for each subscriber who should receive and pay for a whole set at one time, $6.00 an order for The Condensed Cyclopedia delivered in bound volumes, or $3.50 when delivered in parts, and $4.00 each for every bona fide order for any one of the serials when ten parts had been accepted and paid for. The defendants also contended before the referee and asked him to find that the words “ order ” and “ subscription,” as between publishers and canvasers, meant, when used as a basis of the latter’s .compensation, orders or subscriptions given by persons accepting and paying for the whole or some part of the work subscribed for, and did not include those given by irresponsible persons who refused to take and pay for the whole or any part of it The referee found that the plaintiff obtained the. following orders:

18 for the American Cyclopedia, for which he was entitled to $15.00 each...................... $270 00

6 for bound sets of The Condensed Cyclopedia, for which he was entitled to $6.00 each........... 36 00

515 for Turner’s Gallery, Picturesque Europe and Picturesque America, for which he was entitled to $4.00 each......"........................ 2,060 00

2,366 00

. The plaintiff has been paid.. ................... 865 00 f

Due plaintiff, with interest from June 1, 1878..... $1,501 00

While prosecuting the business the plaintiff employed one Holbrook . as an assistant, under a contract expressed in the same words as the contract which the plaintiff claims to have made with the defendants. Holbrook was called as a witness in behalf of plaintiff and permitted to testify,over defendants’ objection and exception, that he understood the language employed to entitle him to receive four dollars for every signature obtained by him to the serials above mentioned. By allowing this witness to declare his understanding of his rights under his contract with the plaintiff, he was permitted to testify to the legal effect of the one between the parties to this action, which was clearly incompetent. Whether the plaintiff’s or the defendants’ version of the contract was correct was a sharply litigated question of fact, upon the determination of which the learned referee rested his decision of the case, and in his opinion he referred to this evidence of Holbrook as corroborative of that of the plaintiff. When it affirmatively appears by the opinion that incompetent evidence was relied on in deciding a material issue, its admission cannot be held to be a harmless error. Woodgate v. Fleet, 44 N. Y., 1, 14, 20.

The referee did not err in permitting the plaintiff to prove that many of the subscribers failed to perform their contracts by reason of the defendants’ delay in making deliveries. This evidence was not relevant upon the issue as to what the contract was, nor as to the meaning of the words “ order ” or “ subscription,” but had the referee taken the defendants’ view of the contract or of the meaning of those words, it would have*become competent to show that many of the subscriptions which the plaintiff obtained and forwarded to the defendants became worthless by their neglect to deliver the works as agreed with the subscribers.

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

All concur.


author: Parker, J.

text:
    James Walter Chrystal, an Infant, by Guardian, Resp’t, v. The Troy & Boston Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed April 7, 1891.)

    Negligence—Infant—Railroad crossing—Ringing of bell, etc.
    The plaintiff, an infant, seventeen months old, escaped from its mother’s keeping, crept under a gate and on the defendant’s track at a street crossing, and was run over by a locomotive and injured. There was evidence that the hell was not rung or the whistle sounded eighty rods from the crossing. Reid, that as the baby could not have understood .the warning had it been given, and as it was shown that the mother on missing the child had searched in the garden and looked into the cistern before going to the railroad track, it could not be held that had the statute relating to signals at railroad crossings been comp'ied with the mother would have rescued the child from danger, and, therefore, the damages sustained were not occasioned by defendant’s omission to give such signal.
    Appeal from a judgment of the general term of the supreme court, third department, entered on an order affirming a judgment of the circuit in favor of the plaintiff for $5,694.79, damages and costs.

      John H. Peck, for app’lt; B. A. Parmenter, for resp’t.

       Reversing 22 N. Y. State Rep., 384.

   Parker, J.

On the 4th day of September, 1877, the plaintiff, . then seventeen months old, while unattended on defendant’s track, at the Cary avenue crossing, in Hoosick Falls, was so injured by a passing locomotive as to require the amputation of a leg and a finger of the left hand.

On a former review, 105 N. Y., 164; 6 N. Y. State Rep., 833, it was determined:

1. That this court could not interfere with the finding of the jury, that the plaintiff’s mother was free from negligence contributing to the injury:

2. That the evidence did not authorize the jury to find that the engineer omitted to use reasonable care and diligence to avert the accident.

It appearing that as soon as he saw the child upon the crossing he gave the signal for the brakes to be applied, and reversed his engine, doing everything that could be done to arrest the speed of the train, which he succeeded in stopping after the two small wheels of the engine had passed over me plaintiff’s leg, and the judgment was reversed because there was no evidence of negligence on the part of the defendant.

The record before us contains all the evidence then under review, and in addition some testimony tending to show that the bell on the locomotive was not rung or the whistle sounded eighty rods from the crossing. The questions presented by the record are therefore res adjudicata except in so far as the evidence relating to the failure to sound the whistle or ring the bell as commanded by statute may present others. The jury have found the fact to be that the defendant did not announce that the train was approaching the crossing by making such a signal as the statute requires. The general term have approved their finding. As it has support in evidence it is now controlling. But proof of defendant’s negligent act could not alone charge it with liability. It was one step in that direction, but there remained another which required that it be made to appear that the injury was sustained ‘‘by reason of such neglect” And the question is presented whether there was any evidence on which to found such a finding. A finding in effect that the boy would not have been harmed had the defendant given the proper signals. If it had, they would not have served as a warning to the plaintiff, then a nursing baby learning to walk, who tottered along clapping his hands as the engine moved towards him, for he would not have understood them. But it is said that he was entitled to have this bell rung so that his mother, whose duty it was to care for and protect him, would have been apprised of the approach of the • train and his danger in time to have saved him from harm. While the object of the statute was to afford the best protection possible to travelers on the public highway compelled in the progress of their journey to cross railroads at grade, its provisions are sufficiently comprehensive to include a case like this, if it be true that had the signals been given the accident would not have happened. Such a case may readily be supposed. If it should appear that while a mother was within a short distance of a railroad crossing, but detained briefly by a passing acquaintance, her ■child was injured by a locomotive from which no signal was .given as it approached the crossing, and further that she was conscious of the presence of her child in the vicinity, and the danger to which moving trains would expose it, was so near to it that she had time to and would have rescued it had a signal been given while the train was eighty rods from the crossing, a jury would he authorized to find that but for such neglect the injury would not have happened.

Here the facts are very different The house in which they lived stood back from the street line about twelve feet on which was a high fence containing a gate, which according to the mother’s testimony was then closed and fastened. Between the bottom of the gate and the ground was a space from six to eight inches in width. After nursing the infant, the mother, finding it was inclined to sleep, laid it on the floor and after placing a wooden chair across the outer doorway, stepped into a room opposite to arrange its , cradle, and the child remaining quiet she “ delayed ” to arrange the room. Returning eight or ten minutes later she discovered the child was gone and then she “leapt over the chair or took it up,” and ran to the garden back of the house where potatoes and weeds were growing with stalks as high as the ■child, but did not see him. Then she started back to see if he had fallen into the cistern, and looked in. At that moment she heard the alarm whistle of a locomotive and looking up saw a train nearer the crossing than Eldridge’s, a point 452 feet distant. She ran around the house through the garden to the gate which she found closed and fastened with a string as she had previously "tied .it. Looking down the avenue she saw the baby and ran to its rescue, but did not reach it in time. These facts in no wise suggest that the mother would have heard the bell had it been rung, ■or if she did would have paid any attention to it, for had she not fastened the gate with a string which the baby could not untie, and placed a chair in the doorway to prevent his getting out? More than one hundred trains a day passed by, and hence the precautions which she described. These with the added fact that the habv was asleep not only seem to excuse her absence from the room, but unmistakably indicate that she did not feel any occasion to fear moving trains or heed the ringing of locomotive bells which merely indicated such passing. It does not appear that when she missed the child she would have gone directly to the railroad track had a bell been ringing, or if she had that she would have been in time.

Her fears were not in the direction of the railroad, doubtless because of the secure manner in which the gate was fastened, for had they been, with trains passing frequently and irregularly, she would have hastened to the track before exploring the garden and cistern. When her hurried search had proven unavailing the usual danger signal attracted Tier attention, but she was then too late, and whether the bell was ringing or not at that moment could not have made any difference in the result. In the analysis which we have briefly made of her testimony describing the situation and her conduct, no opportunity is presented for a finding that had a signal been given eighty rods from, the crossing the accident would have been avoided. Nor does she by testimony assert to the contrary. With reference to the omission to ring the bell, and its effect on her conduct, she testified on direct examination “ That she heard the whistle; that it made two short toots.

“ Q. Was there any bell rung? A. No, sir; I didn’t hear any.

“ Q. You could have heard one if there had been one ? A. Yes,, sir; I could have heard the bell coming.”

On her cross-examination she said:

“I ran to the fence, and looking down the track saw the child; he was standing up before the accident.

“ Q. You did not pay much attention to the bell? A. I could have heard it. I didn’t hear it. It could hear it if it had rung.

“ Q. Were you paying any attention to the bell or were you looking for your child ? A. I was paying attention, and of course I looked for my child, but when the whistle blowed I went to the train. If the bell was ringing I would have heard the bell before the whistle blew. .

“ Q. I want to know whether you paid any attention to whether ■ it was ringing or not? A. Why, I didn’t hear the bell. '

“ Q. Did you listen for it ? A. No, sir.

“ Q. Did you pay any particular attention whether it was rung? A. No, sir; because I didn’t hear the bell at all.”

Now, it will be observed that in only one answer does she assert that if the bell had been ringing she would have heard it before the alarm whistle sounded, which was clearly too late as the result shows. In that answer she does not say how long before she could have heard it. She does not assert that had it rung she could have heard it in time to have saved the child from injury, or if such were the case that in view of the situation her attention would have been attracted in the direction of the railroad, rather than the garden and the cistern, which she first visited. While her evidence indicates that she was quite positive that the bell did not ring, it fails to suggest that she even entertained the thought that if the bell had been rung the result would have been otherwise.

It seems to be clear, therefore, that the evidence did not authorize a finding that had the statute relating to signals at railroad crossings been complied with the mother would have rescued the child from danger. No other way is suggested in which the ringing could have been made available for the protection of the plaintiff.

It follows that the damages sustained were not occasioned by reason of the defendant’s omission to give a signal eighty rods from the crossing. The exception to the ruling of the court on the motion for a nonsuit was well taken.

The judgment should be reversed.

Judgment reversed and new trial granted, costs to abide event

All concur, except Bbadley, J., not voting.


author: Landon, J.

text:
    Sabrina Kaveny, App’lt, v. The City of Troy, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Nonsuit—When will not be distubbed.
    Where the plaintiff’s evidence upon a second trial is substantially the same as that upon the first, and the evidence upon the first has been held by the court of appeals insufficient for a recovery, a judgment of nonsuit on the second trial must be affirmed.
    .2. Negligence—Ice and snow.
    The mere fact that a slight ridge was formed by two flagstones, upon which the water from adjoining premises dripped and formed a ridge of ice, is not sufficient to render the municipality liable, where it does not appear that plaintiff fell upon these flagstones.
    Appeal from a judgment of nonsuit directed by the court at the close of the whole testimony upon the trial at the Rensselaer •circuit.

      James Lansing, for app’lt; W. J. Roche, for resp’t
   Landon, J.

The appellant claims that she has made a better ■case than that upon which the court of appeals ¡held that she was not entitled to recover. 108 N. Y., 571; 14 N. Y. State Rep., 18. Some evidence was given tending to show that at a point in the side walk near where she fell two small flag-stones lay side by •■side, an inner and an outer one, the first declining slightly in grade from the middle of the walk to the piazza of the hotel, and the second from the middle of the walk to the curb stone, thus forming a ridge in the walk; that the water dripped from the piazza Toof upon these stones, and froze, thus adding a ridge of ice to the ridge formed by the flag-stones. The ridge formed by the •flag-stones, if any, was too slight to be termed a substantial defect in the walk, and the real difficulty was in the snow and ice, as to which the testimony is the same now as upon the former appeal. Besides it does not appear that the appellant fell upon these two flag-stones.

Judgment affirmed, with costs.

Leabned, P. J., concurs; Mayham, J., takes no part


text:
    The National Exchange Bank of Albany, App’lt, v. John McFarlan et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Trial—Order eor separate.
    An order, under Code Civil Procedure, § 967, directing a separate trial between the plaintiff and one or more defendants, is a discretionary one.
    2. Same.
    Where the action was against endorsers of a note, and each claimed that his endorsement was a forgery, and it appeared that many similar notes existed, and that upon a trial had upon such a note, evidence was given relative to the signature of one endorser which was not competent against the other, and which evidence counsel stated he believed had prejudiced the case of the other endorser, Held, that an order granting a separate trial to each, as between himself and the plaintiff, would not be disturbed.

      Appeal from an order of the Montgomery special term directing that each defendant have a separate trial of the issues raised by the pleadings between him and the plaintiff.

      C. J. Buchanan, for app’lt; M Countryman, for resp’ts.
   Landon, J.

The action is upon a promissory note made by-Daniel Carmichael, and the defendants are sought to be charged as endorsers. Bach defendant denies making the endorsement. The question of fact is whether the alleged endorsements are forged. The motion for a separate trial was granted upon the motion of .the defendant McBarlan and upon affidavits showing that there are many notes similar to the note in suit; that upon a, trial already had upon one of these notes to which the defendants interposed the like answers, much evidence was offered and received for the purpose of showing the genuineness of the endorsement of the defendant Carmichael which was not admissible against the defendant McBarlan, but which the defendant and his counsel believe tended to prejudice the case of McBarlan in the minds of the jury. In this case the same evidence will probably be offered against the defendant Carmichael and the defendant McBarlan will, it is -believed by his counsel, be unjustly prejudiced by it.

The order is a discretionary one. Section 967, Code Civ. Pro., provides that, “ a separate trial between the plaintiff and one or more defendants * * * may be directed by the court in its discretion.’’ See also § 455. The learned justice who granted this order presided upon the trial upon the other similar note. He has presumably exercised his discretion-in the light of the demonstration had before him of the danger to which McBarlan’s rights-are exposed by the failure of the jury to discriminate as they ought between the evidence which affects him and that which affects Carmichael. We can see from the affidavits that such danger is probable. Under the circumstances we can hardly doubt that the order is right

Order affirmed, with ten dollars costs and printing disbursements.

Mayham, J., concurs; Learned, P. J., takes no part.


text:
    Abram V. Morris v. John Carmichael and John McFarlan.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.).
   Landon, J.

This order is like the foregoing, and is for the-same reasons affirmed, with ten dollars costs and printing disbursements.

Mayham, J., concurs; Learned, P. J., takes no part.


text:
    James McDonald, Resp’t, v. The City of Troy, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Municipal corporations—Presentation op claim against.
    The charter of the city of Troy, Laws 1872, chap. 129, tit. 6, § 10, requires the presentation of a claim against the city to its comptroller. The attorney for the plaintiff prepared such a claim, presented a copy to the comptroller, stated that he had the original with him and partly exhibited it, and he asked the comptroller whether that was all he wanted, to which the latter replied “ yes.” Held, a substantial compliance with the requirements of the charter.
    3. Trial—Rulings.
    Where a question is presented by counsel not material to the decision of the case, it is not error for the court to refuse to pass upon it.
    Appeal from judgment in favor of plaintiff for $400 damages- and $206.90 costs, entered upon verdict, and from order denying motion to set aside the verdict and for a new trial.

      H. A. King, for resp’t; W. J. Boche, for app’lt
   Landon, J.

Objection is taken that the plaintiff did not present his claim to the comptroller of the city pursuant to the requirements of the charter. Chap. 129, Laws 1872, title 6, § 10.

The attorney for the plaintiff prepared the original claim and presented a copy of it to the comptroller, at the same time stating that he had the original with him and partly exhibiting it to the comptroller and asking him if that was all he wanted, to which the comptroller replied, “Yes.” This was a substantial compliance with the terms of the charter. The original was not withheld ; the comptroller clearly could have had it if he had needed it. As was said in Magee v. City of Troy, 48 Hun, 383; 16 N. Y. State Rep., 336; aff’d, 119 N. Y., 640; 29 N. Y. State Rep., 992: “ The comptroller thus obtained the notice the law contemplates.”

The plaintiff was injured by being thrown from his buggy. While riding at night along North Second street his horse was suddenly stopped by coming in contact with a pile of lumber lying upon the side of the street, and the plaintiff was thrown out. This lumber had been placed there for building purposes by the owner of an abutting lot The deposit of lumber was temporary and for a reasonable purpose, and was, therefore, permissible. Callanan v. Gilman, 107 N. Y., 360; 12 N. Y. State Rep., 21. But in such case reasonable care should be taken to protect the traveler using the street from receiving any injury from it The pile was not guarded, and was not lighted except by the ordinary street lamps. Whether the absence of any guard or any other light was negligence was a question for the jury.

The question of the plaintiff’s contributory negligence was also for the jury.

The pile of lumber had been lying upon the street sufficiently long to justify the jury in finding that the city had notice. Magee v. City of Troy, supra.

The counsel for the defendant requested the court to charge the jury that if they found for the defendant upon the ground that the claim was not presented to the comptroller, the plaintiff would not be barred by the provision of the charter or any statute of limitation from maintaining a new action. This was declined, and we think properly, upon the ground that the question presented was not material to the proper decision of this case, and the court was not obliged to pass upon questions supposed to arise in a hypothetical case.

Judgment and order affirmed, with costs.

Learned, P. J., and Math am, J., concur.


text:
    Margaret Champion, App’lt, v. Elam Williams, Ex’r, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    Will—Legacy—Power oe sale oe personal property.
    A testator, by Ms will, gave a watch to Ms daughter and money legacies to other legatees, and then gave the rest of his estate to his wife, in lieu of dower, “ to be used and enjoyed by her during the term of her natural life,” and after her decease to his daughter. Then followed a clause : “I hereby empower the executor of iny said will, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts that may be against my said estate.” Held, that it was not the intention of the testator that the personal property should be converted into money and the income be paid the wife during life; that the executor could sell only so much thereof as was necessary to the payment of the special legacies and debts, and that the remainder must remain under the wife’s control in its present form.
    Appeal from an order of the special term, confirming a report of the referee appointed with the approval of the surrogate to hear and determine the claim of the plaintiff, and also from the order denying plaintiff’s motion to set said report aside.
    The plaintiff was the widow of the testator. She presented two ■claims against the estate: one for $488.25, being for cash which she had delivered to the testator to deposit in her name in the savings bank, but which he deposited in his own name. The referee allowed this claim. The other claim was for $381.39, and was for sundry items of expenditure which the plaintiff had paid since the death of the testator. Of these items $163 were for undertaker’s and funeral expenses, including thirteen dollars for a headstone at the testator’s grave. Other items amounting to fifty-five dollars were payments made by her of the bills of the physicians who had attended the testator. The remaining items were mainly for expenses in carrying on business after the testator’s death. No part of the second bill was allowed.
    The referee found that the plaintiff had taken possession of seventy-two dollars of the plaintiff’s money; that she retained possession of his farming tools and stock worth $493, and that from a month before testator’s death in July, 1887, until December following she had carried on the manufacture of pill boxes in which her husband, the testator, had been engaged, and in so doing had appropriated the tools, materials, manufactured stock and proceeds of such business to the value and amount of $967.79; and that, therefore, she was not entitled to any recovery against the defendant, and he directed judgment dismissing the claim. Other facts appear in the opinion.

      JEugene Burlingame, for. app’lt; Herrick & Belehanty (John A. JDelelianiy, of counsel), for resp’t.
   Landon, J.

We think the plaintiff was entitled to recover for the amount of the savings bank deposit. The facts were not in dispute and the referee found them in her favor; no offset or defense was established. Her payments of the several accounts set forth in her second bill were probably made from the money and . proceeds of the property of her husband’s estate, and this bill was therefore properly disallowed. The referee erred in establishing claims against her as for the conversion of the personal property upon the testator’s farm and the personal property and accounts connected with the pill box manufactory, for the reason that under her husband’s will she was rightfully in the possession of the property, and the executor had not shown any right to deprive her of that possession. The testator by his will gave his gold watch -to his daughter and money legacies amounting to $600 to other legatees, and then provided:

Fifth. I give, devise and bequeath all the rest, residue and remainder of all my estate both real and personal to my wife Margaret Champion, to be used and enjoyed by her during the term of her natural life, and to be taken and accepted by her in lieu of dower, and from and immediately after her decease I give and devise the same to my daughter Eugenia.
Sixth. I hereby empower the executor of my said will, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts that may be against my said estate.”

It does not appear that there were any debts other than those paid by the plaintiff, and the one for which she seeks recovery in this proceeding, and the evidence tends to show affirmatively that there were none other. It appears that the executor has made an inventory showing cash assets, other than any of the items here in controversy, more than sufficient to pay all the money legacies and expenses of administration, and he offers no evidence to show any lack of assets in his hands for the purpose.

It follows, therefore, that the property in the plaintiff’s possession is part of that rest and residue which the testator devised and bequeathed to her “ to be used and enjoyed by her during her natural life.”

The executor urges that the personal property should be sold and the proceeds invested, the income to be paid to the plaintiff for life, and the principal to the daughter upon the plaintiff’s death. But the testator himself placed a limit both upon the power of the executor to sell, and also upon the amount he might sell, by the words : “I hereby empower the executor of my said

estate, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts.” If there is no necessity, there is no power; if the power should come into existence then its limit is fixed. The testator qualified his otherwise absolute devise and bequest of the residue of his estate to the plaintiff by the words, to be used and enjoyed by her during her natural life.” Of course what remains after the payment of the debts, legacies and expenses of administration forms the residue. Since the sale must be restricted to the satisfaction of these three items, it follows that no part of the residue can be sold.

This intent of the testator harmonizes with the situation. He gave Ms widow real estate and personal property adapted for use and enjoyment together, as he himself had used the two kinds of property. Naturally he did not wish any more' of the one kind to be separated from the other than necessity would require/ Where the will indicates the manner in which the personal property is to be used and enjoyed by the life tenant, the law will not prescribe a different manner.

The defense rests upon the executor’s supposed right to take possession of all the personal property and sell it He can under the peculiar language of this will only take what is necessary, and since he has not shown the necessity, he has not shown that the plaintiff violates his right by using and enjoying what her husband bequeathed her.

Besides he has made no demand, proper or otherwise, for any of this property.

The order confirming the referee’s report should be reversed, and the motion to set it aside granted, with costs of this appeal to the plaintiff against the executor as such, and a new trial granted, referee discharged, costs to abide the event

Mayham, J., concurs; Learned, P. J., takes no part.


text:
    Isaac Hough, Resp’t, v. Theodore V. Folmsbee, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Abbest-^Affidavit.
    The plaintiff brought an action of replevin for personal property. He also obtained an order of arrest under Code Civil Procedure, § 549, subd. 2, which stated that the defendant had concealed, removed or disposed of the goods with intent to deprive the plaintiff of the benefit thereof, but the affidavit did not state that this had been done so that the chattels “cannot be found or taken by the sheriff, and with intent that they should not be found or taken,” etc. Held, that the order of arrest was improper.
    2. Same.
    The order of arrest could not be sustained as granted in an action “to recover damages * * * for an injury to property, including the wrongful taking, detention or conversion of personal property ; ” it not appearing that the sheriff cannot find or take the goods nor that plaintiff cannot issue a requisition to the sheriff under Code Civil Procedure, § 1694, requiring him to take possession of them.
    Appeal from order of the Albany special term, denying a motion to vacate an order of arrest. Said motion was made upon the papers upon which the order of arrest was granted.
    The following is the opinion at special term:
    Learned, J.—Under the old Code, § (154) 179, prior to 1851, it was provided that a defendant might be arrested in an action to recover personal property, “ where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff.”
    In 1851 this was amended by adding, “ and with the intent that it should not be so found or taken or with the intent to deprive the plaintiff of the benefit thereof.” Proof was to be made by affidavit. Section 181.
    In the case of Barnett v. Selling, 70 N. Y., 492, decided under that section, 179, the affidavits showed that the defendant had, by fraudulent representations, bought tobacco of the plaintiff. And that the defendant, with intent to deprive plaintiff of the benefit thereof, had sold and disposed of the tobacco; and that the sheriff to whom, the requisition had been issued had not found or taken any part of it, but had returned the requisition with the usual certificate. It was held that the order of arrest, in respect to the tobacco, was properly granted. It will be seen therefore that it appeared by the affidavits in that case that the sheriff had been unable to find or take the property ; and, further, that the claim for the property had been made previously to the order of arrest.
    Ho question, therefore, arose as to the allegations needed in the complaint. There was no dispute that the property could not be found or taken by the sheriff. And the first sentence of the opinion speaks of the property being beyond the reach of the process of the court. A concealment, removal or disposal of the property which did not put it beyond the process of the court was not considered by the court. For no such case existed.
    The present Code as it now stands is different. The provision was originally found in § 550, subd. 1, where it was substantially like the old Code, § 179, subd. 3. But by chap. 672, Laws of 1886, nothing was left of § 550 but its last subdivision. And the whole matter was brought into the new section, 549. Subdivision 2 of that section is the one to be considered. It will be found that this subdivision authorizes an order of arrest in several kinds of action. As to some of these it simply describes the kind of action; in others it requires certain allegations in the complaint. For instance, it gives authority for an order of arrest in an action to recover for money received “ where it is alleged in the complaint,” etc.; so it gives a right to an order of arrest in an action to recover a chattel “ where it is alleged in the complaint that the chattel, .or a part thereof, has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, with intent,” etc.
    The complaint in this action avers that the defendant has not sold the goods in question and refuses to deliver them and wrongfully' detains them, and has concealed, removed or disposed of them with intent to deprive the plaintiff of the benefit thereof. But it fails to aver that the property or any of it cannot be found or taken by the sheriff. It is very possible that the property has been sold and yet it may be within reach of the process of the court. And the plaintiff asks for a recovery of the property or for the value in case a delivery cannot be had. H the complaint then were solely for the recovery of a chattel, in my opinion the order of arrest could not be sustained.
    But there is another clause in subd. 2 of this section, by which an order of arrest may be granted for an injury to property, “ including the wrongful taking, detention or conversion of personal property.” How this complaint avers the ownership of the property, the delivery to defendant to be sold by him; the fact that defendant has not sold the property and unlawfully detains it from plaintiff after demand. Here then is a sufficient complaint for wrongful detention and conversion. And in an action of that kind an order of arrest may be granted.
    Motion denied, with ten dollars costs.

      Z. S. 'Westbrook, for app’lt; John A. Stephens, for resp’t.
   Landon, J.

The plaintiff in his affidavit says: “That this was brought to recover possession of certain personal property wrongfully detained by defendant, or the value thereof in case a delivery cannot be had, and damages for the wrongful detention thereof.” The affidavit then recites the facts constituting the cause of action substantially as stated in the verified complaint. The complaint alleges title in the plaintiff to certain goods and merchandise, their value, the delivery thereof from March, 1889, to March, 1890, by plaintiff to defendant under an agreement whereby defendant was to sell the same as agent for the plaintiff and return the proceeds of the sale to plaintiff as soon as received, and to return the unsold part thereof to plaintiff ; that defendant did not sell the same; that plaintiff demanded of defendant in August, 1890, the same or their proceeds, which was refused, and then alleges that defendant wrongfully and unlawfully has detained said goods from plaintiff and has concealed, reinoved, or disposed of the same with intent to deprive the plaintiff of the benefit thereof. Judgment is demanded against the defendant for the recovery of the possession of the goods, or for §1,169.50, their value, in case a delivery cannot be had, together with $250 damages for their detention.

The order of arrest cannot be sustained upon the ground that the action is “to recover a chattel,” for in such case § 549, Code of Civil Procedure, provides that the defendant may be arrested “ where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof.” This complaint does not allege that the goods have been so concealed, removed or disposed of that they cannot be found or -taken by the sheriff with either one or the other intent specified in the section.

But the learned judge at special term upheld the order of arrest under that clause of § 549 which provides that the defendant may be arrested in an action “To recover damages for * * * an injury to property, including the wrongful taking, detention, or conversion of personsal property.”

Upon the facts stated, the plaintiff might have framed his complaint as for a conversion. But he chose to frame it in replevin. In the former case he would abandon title and possession and seek satisfaction in damages. In the present case he insists upon his title and seeks to regain possession. A complaint for damages for injury to the goods and for their unlawful detention would be appropriate if the goods had been returned after having been injured and unlawfully detained. Under the complaint as framed the plaintiff can issue a requisition to the sheriff to take possession of the goods, § 1694, and it does not appear that the sheriff cannot find or take them. For aught that appears this remedy is available. If so, and if the order of arrest is upheld, then the plaintiff will have two remedies, each upon grounds inconsistent with the other ; one because he can take the goods, and the other because he cannot. Under § 549 he cannot have an order of arrest if he so frames his complaint as to show his right to issue his requisition, unless he also shows that the requisition will not help him.

Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs.

Mayham, J., concurs; Learned, P. J., takes no part.


author: Van Brunt, P. J.

text:
    Nathaniel Jarvis, Jr., Pl’ff, v. Sarah Lynch, Ex’rx, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Ejectment—Description op property.
    Where, in an action of ejectment, the deeds put in evidence by plaintiff do not locate the property with sufficient accuracy to enable the court or jury to determine whether it is described by the words of the complaint, there can be no recovery.
    Motion for new trial on exceptions ordered to be heard in the first instance at the general term.

      George W. Goiterill and A. Price, for app’lt; Anderson & How-land, for resp’t.
   Van Brunt, P. J.

This action is one of ejectment to recover

possession of premises consisting of a block of land in the city of New York bounded by 155th and 156th streets and the 8th avenue and the exterior street along the Harlem river.

The plaintiff,, to establish his cause of action, introduced evidence by which he claimed to show title in himself of the premises in question.

Various objections were raised to the completeness of the evidence, which were substantially as follows:

First.—That the premises in question were between high and low water mark of the Harlem river, and did not pass by the grant to the freeholders and inhabitants of Harlem.

Second.—That the plaintiff showed no record chain of title.

Third.—That the deeds in question do not locate the property or any part of it so as to enable the court or jury to render judgment.

Fourth.—That the plaintiff has shown no title to the property in question; and,

Fifth.—That the plaintiff has shown no right of possession of the property in question.

A very interesting question is raised by the first ground upon which the motion to dismiss the complaint is founded.

It is urged that the court of appeals in the case of Mayor v. Hart, 95 N. Y., 443, has decided this question adversely to the claim of the plaintiff. But we think upon an examination of that case and of the proofs in the case at bar, it might very well be argued that the decision of that case is not conclusive upon the question as to whether the title to property located as it is claimed the property in question was did not pass by the grant to the .freeholders and inhabitants of Harlem, in that it does not seem to have laid in the waterway, as the property under discussion in the case cited undoubtedly did.

But it is useless to enter into a discussion of this point, as well as any of the others which are raised, for the reason that we think that the third ground is an insuperable bar under the proof as it stands to the plaintiff’s recovery, and that is that the deeds do not so locate the property or any part of it as to enable the court or jury to render judgment.

We have examined the evidence and re-examined it to see if there was anything in question with that which seems to have been mentioned in the grants through which the plaintiff claims title. The latest description contained in the deeds or grants is that in the conveyance made by Barent Waldron to John Myer in August, 1740. It may be said that this is an erroneous statement, because John Myer, in 1743, conveyed the property to Abraham Myer by the same description, and Abraham Myer conveyed it to Arent Myer in March, 1746, by the same description. The plaintiff then derives title through the will of Arent Myer, who devised all his property to his wife and children. In 1794 these children conveyed to Aaron Bussing all the real estate which Arent Myer, deceased, devised to them. By the will of Aaron Bussing, in 1829, various pieces of property were specifically devised and the balance was given in trust for his heirs, and these heirs, in 1861, united in a conveyance of this property and of land under water not specially devised to the plaintiff in this suit.

It will thus be seen that no attempt has been made to describe the property in question except in the most general way since the conveyance of Waldron to Myer. It was sought to supplement this evidence by proof that during the lifetime of Aaron Bussing he had exercised certain rights of ownership over the land in question, such as cutting sedge, etc. But this evidence it is not claimed was sufficient to establish a title by adverse possession; but was only offered for the purpose of showing that the plaintiff or his grantors had been in possession of the property in question and exercised rights of ownership thereon in order to prove seizin of his grantors.

Therefore, unless the chain of title is made out, and there was sufficient in the former deeds to show that the title to this property had vested in Aaron Bussing, these acts amounted to nothing. And in order .that we should determine as to whether the title to this property had vested in Aaron Bussing it would be necessary to locate the property contained in the grants which have been previously mentioned.

There is nothing whatever which brings the property involved in this litigation within the description or terms of the deed from Waldron to Myer. Under these circumstances it cannot be said that any chain of title is made out even to the freeholders and inhabitants of Harlem upon the grant from whom the plaintiff relies. This want of definiteness of location seems to be at the foundation of the plaintiff’s case, and without some more accurate proof locating the property conveyed to Myer, we fail to see how the court or a jury can be called upon to speculate as to whether the property mentioned in the complaint may, or may not, have been included in that description.

Various exceptions were taken to the admissibility of evidence during the trial, but none seems to have any particular bearing upon the question herein stated, and it does not seem to be necessary to discuss them at length.

The exceptions should, therefore, be overruled and judgment ordered for the defendant, with costs.

Daniels, J., concurs.


author: Daniels, J.

text:
    Augustin Daly, Resp’t, v. Gustav Amberg, Def't.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Injunction—Cannot be disregarded, though irregular.
    An injunction order, although irregular, cannot be disregarded. The proper course is to move to set it aside because of the irregularity.
    2. Same—Service.
    An injunction order, served with the complaint, had not been served upon the defendant, who was out of the state. The order in terms restrained him, his agents, etc., from producing a certain play. The papers were served upon one of the appellants here, who was acting as manager pro tern. Held, that although no service had been made upon the defendant in the action, yet the appellant, as his servant, and cognizant of the contents of the order, was bound to obey it. “
    Appeal by Herman Schoenberg, Leo Winterfield and August Walther from an order directing their punishment for disobeying an injunction order issued in this action.

      Howe é Hummel, for app’lts; Stephen H. Olin, for resp’t.
   Daniels, J.

The defendant, his agents, actors, servants and employes were restrained by an order to show cause why the same should not be continued, during the pendency of the action, from producing, performing, representing, playing, printing, publishing, selling, copying or adapting, or in any way disposing of or using or causing or suffering to be produced, performed, represented, played, printed, published, sold, copied or adapted, or in any way disposed of or used, the dramatic composition or comedy, entitled “ Die Wilde Jagd,” either in whole or in part, or any copy, or imitation or adaptation or arrangement thereof.

Ineffectual efforts were made to serve this order and the summons and complaint, with the affidavit thereto annexed, upon the defendant, on account of his absence from the state. He then was, and previously had been, the manager and proprietor of the Amberg Theatre, situated on Irving Place and Fifteenth street in the city of New York, and was in the control and direction of the members of the theatrical company there employed, including the present appellants. It was designed to produce this play at the theatre on and after the 17th of October, 1890, and it was prodnced by the company on the evening of that day and on the afternoon and evening of the following day.

A copy of the injunction order had been personally served upon the appellant Schoenberg on the fifteenth of the month, by Harold Swain, an attorney and counselor of this court, who was the managing clerk of the plaintiff’s attorneys. This person was served as the manager, at that time, of the business of the theatre. And from the exercise of authority by him as that has been described by Swain, and the statement made by Schoenberg to the affiant, Ernest 0. Wagenfuehr, that he had been in full charge of the theatre on Friday and Saturday of October the 17th and 18th there is little if any room for doubting that to have been his position, although he himself has sworn that he was no more than the defendant’s bookkeeper. The defendant would naturally delegate this authority during his own absence to some member of the company, and as no other person appeared to wield that authority, and this appellant seems to have assumed and used it, he has been properly concluded to have occupied that position, as he admitted himself to have done so. Upon this fact the proof preponderated in favor of the plaintiff.

To make a regular service of the injunction order, the Code of Civil Procedure, by § 610, has required that there shall be served with the order itself copies of the papers on which it has been issued. The service made upon this appellant on the 15th, while it did not fail to supply him with complete information that the productioh of the play at the theatre had been legally forbidden, was still irregular. And to remove that irregularity another service of the order, with copies of the papers on which it had been issued, was made upon the same person by Mr. Swain about the middle of the 17th of October, 1890. That complied with all the requisites for a complete service, and subjected him to the obligation of obeying the mandate of the law, that the play should not be produced.

The Code of Civil Procedure, by § 608, permitted the order to accompany the summons, as it did in this case, and that made the injunction regular. And while it should have contained a statement of the grounds on which it had been allowed, to comply with § 610 of this Code, the omission to do so was no more than an irregularity, and did not excuse the disobedience of the mandate. This appellant is one of the persons on whom the injunction was intended to operate and restrain. It included not only the defendant in the action, but also, by express direction, his agents, servants, employes and actors. And when these papers were served upon him as one of these persons, he had but one alternative, and that was implicitly to obey its command, and to abstain from the production of the play, which could readily be done, as that was at one time proposed, by substituting another in its place. It was not disobeyed for want of previous service on the defendant, but from a determination to disregard it, and that was a contempt of the court which had by one of its justices issued it

That knowledge of the restraint acquired by the person violating the injunction is sufficient to bind him to its observance, was held in Koehler v. Farmers', etc., Bank, 6 N. Y. Sup., 470; 25 N. Y. State Rep., 222; aff’d 117 N. Y., 661; 27 N. Y. State Rep., 982. And was fully obtained by this person. He violated it voluntarily, and should not now be heard to complain of the consequences lie thereby brought upon himself. He had ample time for information and reflection, and chose to disregard the order of the court, issued .under the authority of the law; whether the service was or was not irregular, without having been first made upon the defendant, was not for him to inquire, for even an irregular injunction cannot be disregarded by the person receiving and included within it, but it must be observed until advantage shall be taken of the irregularity by way of an application to set it aside on motion.

There was nothing in the proceeding forming any legal excuse for proceeding with this play after it had been served, as it was,. with the other papers on the 17th of October.

It was found by the court that the disobedience of this appellant had defeated, impaired, impeded and prejudiced the rights and remedies of the plaintiff. And that conclusion was fully supported by the facts. His right, as it had then been established, was that the play should not be produced at this theatre while the injunction was in force. And that had been done in defiance of the remedy forbidding it. The case, therefore, was one for punishment. Code Civil Pro., § 2280. And without proof of actual loss to the plaintiff, that was authorized to the extent of a fine of $250, the amount imposed by the court, and imprisonment until the fine should be paid, not exceeding for the failure to pay the period of thirty days, and by imprisonment as a punishment, certainly as extended as that was included in the decision and order, which was for thirty days in addition to that resulting from the nonpayment of the fine. Code Civil Pro., §§ 2284-5. This was no more than was commensurate with the facts of the case and the necessity of securing the observance of the legal commands of the law.

The appellant Leo Winterfield was served with a full set of the same papers about the middle of the 17th day of October. He was the treasurer engaged in selling tickets for the production of the play. At the time of the service there is good reason for believing that he was well aware of their import, for the fact is proved that he brushed them out of the window of the ticket office, from which they fell upon the floor, and were then by another person, present, animated probably by the same understanding, kicked into the street. It is true that this appellant has endeavored to mitigate his act by way of explanation. But that, in view of what has been sworn to by another and entirely disinterested affiant, cannot be accepted as credible.

If the papers had been placed within his reach, as he says they were, for the defendant, then it was his duty, and he would without doubt have observed it, to retain them for him. But without yielding to what in that event would have been a very natural inclination, he immediately pushed the papers out of the window, and sold the tickets for the production of the play, in violation of the injunction. Without this service on his part there would have been no attendance on the part of the public, and the play would not have been produced. He, therefore, by his own acts subjected himself to the same conclusion as to the facts, and deserved, as well as received the same measure of punishment as the manager.

The case of the appellant August Walther is' not so flagrant. But still he did violate the injunction, irregularly, it must be admitted, served upon him. But the service which was made was sufficient, if he had understood the English language, to have apprised him of his duty. And when that is the fact, a mere irregularity of service, while it will form a good reason for setting it aside on a motion made for that purpose, will not excuse a disobedience of the order itself, People v. Sturtevant, 5 Seld., 263, 278; while it remains undisturbed, it will be complied with. But while it is stated that the effect of the papers was explained to him, he swears that he did not understand it. But that fact will not wholly excuse him, for he should have consulted some person to secure an explanation of the order and discovered his duty. He had been engaged in theatrical service for six years in this country, and during that time must have acquired some knowledge of the necessity of acquainting himself with the contents of formal legal papers. And that he failed to do. But still his case has been greatly mitigated by his ignorance of the language, although his offense has not been wholly removed. The court at the hearing so considered it, for the punishment by imprisonment was not imposed upon him, otherwise than to coerce the payment of the $250 fine. But as the facts appear this fine should be reduced to the sum of $100, which will be sufficient to inspire him hereafter with appropriate respect for the orders of the court, and with the duty incumbent upon him of ascertaining by the assistance of others what is intended to be exacted from him.

As to August Walther the order- should be modified by reducing it in amount to the sum of $100, and with that modification it should be in all other respects affirmed. And as to the appellants Herman Schoenberg and Leo Winterfeld, the order should be affirmed, with ten dollars costs and the disbursements.

Yan Brunt, P. J., concurs.


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    Joseph Aron, App’lt, v. Alfred de Castro, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Sale—Rescission.
    In an action to rescind a sale of stock, procured by false representations, the plaintiff failed to show any damages. Seld, that the action could not be maintained. The rule in equity upon this point is the same as at law, and in both it must appear that there is a substantial wrong to be redressed.
    Appeal from judgment entered upon decision at special term.

      J. E. Parsons, for app’lt; B. H. Griffin, for resp’t ,
   Van Brunt, P. J.

This action was brought to rescind the sale of stock upon the ground that the plaintiff had been induced to purchase the same by reason of certain false and fraudulent representations. The action was defended upon various grounds, among which was a denial that the defendant sold the stock or that he made any false representations. The denial that the defendant sold the stock was based upon evidence tending to prove that the real principal was one Morino of Paris; and the denial as to the fraudulent representations was based somewhat upon the fact that whatever representations were made were made by one Grodchaux, acting as broker. And it has also been urged in support of the judgment upon the argument of this appeal that the plaintiff having shown no damage, equity will not interfere to relieve him, although there may have been fraudulent representations.

It seems to us from the evidence in this case that as far as the plaintiff is concerned the defendant was the principal. He knew of nobody else; he dealt with the defendant, and the reasonable inference, from the peculiar manner in which the defendant accounted for the proceeds of the sale, is that he considered himself the principal. There is no evidence that the defendant has ever accounted to anybody for the whole of the purchase money of this stock. He paid over a portion to the alleged agent of Morino in Paris. He paid his commissions to the broker, Grodcbaux, but he appears to have retained a large balance for himself. That the defendant, under the circumstances, would be responsible for the representations of Grodchaux seems to be established by the principles enumerated in the case of Mayer v. Dean, 115 N. Y., 556; 26 N. Y. State Rep., 375, in which it is stated that: “ It is well settled in this state that a principal cannot retain the benefit of a contract obtained through the misrepresentation of his agent, even though the principal was innocent of the representation and really intended no fraud.” ■

It is true that the learned judge who tried the case found that the representations made by Grodchaux to the plaintiff were substantially true, and that this finding is challenged by the appellant upon this appeal as unsupported by the evidence. But in view of the conclusion to which we have come upon the other branch of the case, it does not seem necessary to examine the evidence for the purpose of discovering whether this claim is well founded or not

It is urged, as has already been suggested upon the part of the defendant, that the plaintiff has shown no damage by reason of the representations made to him which led to the purchase by him of the stock in question.

This point seems to be well taken. There is no evidence going to show that the stock was not worth what was paid for it; nor is there any evidence showing that the plaintiff at the time he attempted to rescind could not have sold the stock at the price which was paid for it.

It is the well settled rule that it is the very essence of the action of fraud and deceit that the same should be accompanied by damage. Deobold v. Oppermann, 111 N. Y., 531; 20 N. Y. State Rep., 81, and cases there cited.

Fraud without damage, or damage without fraud will not sustain an action. Taylor v. Guest, 58 N. Y., 266.

It is true that these principles were laid down in actions at law, but the same rule prevails in actions in equity, because unless the plaintiff has suffered damage by reason of the fraudulent representations he has not been wronged thereby, and a fraudulent transaction implies a wrong doñeas well as a person wronged. Fancied grievances cannot be remedied in judicial proceedings. Courts are supposed to deal with substance, not shadow, and they will not entertain jurisdiction unless there is some injury to be redressed or wrong prevented.

Therefore; in the case at bar without showing damage the plaintiff cannot call upon a court of equity to intervene.

It may be urged that the mere showing that the representations which were the inducing cause of the purchase upon the part of the plaintiff were false implies damage. But there is no presumption of damage arising from a representation which is proved to be false. It rests upon the plaintiff to prove not only the falsity of the representation but that some damage at least has been sustained thereby; and there is-no difference in this respect between proceedings in equity and proceedings at law.

It may be true that upon proof of false representations and damage thereby upon the part of the plaintiff a -court of equity will grant relief where the action for fraud and deceit will not lie ; but the proof of damage must be furnished the court in both cases in order that it may appear that there is a substantial wrong to be redressed.

It would seem, therefore, that there is no reason for disturbing the judgment, because of the want of proof of damage.

The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.


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    The Hong Kong & Shanghai Banking Corporation, Resp’t, v. Joseph M. Emanuel, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.

    Bills and notes—Dbaft against consignment—Evidence.
    The action was for a balance due on a draft drawn by Albert A. Meyer, of Meyer & Co., Hiogo, Japan, and afterwards endorsed by the appellant, Emanuel, and delivered to the plaintiff with the shipping documents of a cargo of oil, sent from New York and consigned to Meyer & Co. It was expected that the oil would pay the draft; it did not do so. The p’aintiff, under objection, offered in evidence a statement of Meyer & Co. of the account, which he said had been presented to appellant. Meyer then testified that it was agreed between him and appellant, a part owner of the cargo, that upon its arrival in Japan it should be turned over to Meyer & Co. The appellant, upon being called, denied this entirely. Held, that as the question of the disposition of the cargo was disputed, it was error for the court to admit against appellant the return and statement of Meyer & Co. as to the amount which the cargo realized.
    Appeal from a judgment on the verdict of a jury, and from an order denying a motion for a new trial.

      Sol Kohn, for app’lt; Amasa A. Redfield, for resp’t.;
   Daniels, J.

The verdict was recovered for the amount of a balance found to be due to the plaintiff upon a bill of exchange drawn by Albert A. Meyer upon Meyer & Co., of Hiogo, in Japan, and which was afterwards endorsed by the defendant, Emanuel, and delivered to the plaintiff. ° The bill was drawn for the" sum of six thousand six hundred seventy-eight pounds, nineteen shillings and a sixpence, British currency. "With its delivery to the plaintiff, the shipping documents of a cargo of oil owned by the appellant and the defendant, Meyer, were also delivered to the bank, and out of the proceeds of the oil, which was consigned to Meyer & Co., it was expected that the draft would be paid. But evidence was given tending to prove the fact to be that the proceeds of the oil, after deducting expenses, were insufficient for that purpose, leaving the balance of $6,269.24 unpaid upon the bill.

To establish the existence of this deficiency the witness Alfred H. Townsend testified that he was the agent of the plaintiff at the city of New York, and transmitted to the appellant an account of the sale of the oil, indicating the existence of this deficiency; and that a similar account was presented by himself to the appellant, to which the latter made no other objection than that to the amount of interest charged. The appellant denied this interview. And evidence was given by the witness Albert A. Meyer to the effect that the cargo of oil was owned one-third by himself and two-thirds by the appellant. And it was proposed by the plaintiff to read the account of the disposition of the cargo of oil as evidence to the jury. This was objected to on the part of this defendant And the court then interrogated Mr. Meyer concerning the consent of the appellant that the shipping documents should be transferred to the plaintiff with instructions to turn them over to Meyer & Go. on the arrival of the ship for that firm to dispose of the oil. Upon that subject this testimony was given:

Q. This cargo of oil was, as I understand, shipped to Japan? A. Yes.

Q. By the ship Sontag? A. Yes.

Q. Who handed over the control of it to Meyer & Co., at Hiogo ? A. The Hong Kong Bank.

Q. Without any direction from you or your associates ? A. Ho; we gave the documents to the bank, with instructions to turn them over to Meyer & Co., upon the ship’s arrival.

Q. Were those directions given by you here ? A. Yes.

Q. And by the defendant here also ? A. That was the understanding.

Q. Between you and the defendant Emanuel? A. Yes; he had a two-third interest in the cargo.

Q. All I wanted to know was if the disposal of this cargo by the plaintiffs in Japan to Meyer & Go. was in accord with arrangements which you or your firm and the defendant Emanuel or his firm had arranged and agreed upon? A. Yes.

The witness further testified that this arrangement was made by writing which was forwarded by him to the firm of Meyer & Co., in Japan.- And upon this evidence the court permitted the returns which had been received of the sale of the cargo and showing its proceeds, to be read in evidence to the jury. In the examination of the appellant he denied having made this arrangement. His testimony was: “I neyer gave him,” that is Meyer, “ any writing such as he testified to; I never entered into any arrangement with the witness Meyer to give the control of these goods to Meyer & Co., in Japan." Then the question was asked: “ Did you ever authorize the plaintiff to employ Meyer & Co. to have the control of these goods? ” And he answered “No, never; I first heard of any arrangement to give the control of these goods to Meyer & Co. to-day, when I heard Mr. Meyer testify to that upon the stand to-day; I never gave any writing whatever relating to the allowing or authorizing Meyer & Co. to sell that oil.”

This brought the fact prominently into controversy whether the appellant had authorized Meyer & Co. to dispose of the oil. If he had, then their return of the result was evidence against him. But if he had not, then it is equally true that the return was not such evidence.

In the course of the charge given to the jury they were instructed that the cargo was so consigned to Meyer & Co. for sale by an arrangement and understanding between the defendants, ■who were jointly interested as owners of the merchandise. To this the defendant’s counsel excepted, and asked the court to charge the jury that it was a question for them and is disputed that Meyer & Co. were selected by the defendant here. That was declined and to that the defendant’s counsel also excepted. These exceptions seem to be well founded, for in the direction which was given to the jury the court instructed them that the cargo had been consigned to Meyer & Co. for sale by an arrangement and understanding between the defendants, which included the appellant. This was a mistake on the part of the judge presiding at the trial, for the fact was not proved in such a manner as to permit the court to assume it and direct the jury, as that was done, that it had been established. It was, on the contrary, a fact asserted by Mr. Meyer and denied by Mr. Emanuel. And as the admissibility of the report of sales was placed by the court upon the evidence of Meyer, that this was the fact, when it was after-wards denied by Mr. Emanuel it was for the jury alone to determine whether the fact had been proved in the case or not.

By the instruction which was given, and withheld this inquiry was taken from the province of the jury and the fact was decided by the court. If the defendant Meyer was right in this statement, then this report of the sales was admissible against the appellant. But if the latter was correct in denying the evidence of Meyer, then the report was not evidence against him. As the case was presented the jury could very well find that the appellant had not consented to or approved of the account presented, as that was stated in the evidence of Mr. Townsend. And if they had found that' fact not to be proved, then the entire right of the plaintiff to recover this balance would stand upon the evidence of Meyer, denied as it was by the appellant. And in this state of the evidence he was entitled to have that question submitted to the jury. And if they were satisfied that he did not acquiesce in or approve of the account, and did not authorize Meyer & Company to sell the oil, then he was entitled to a verdict in his favor, for there would be no proof in that state of the case establishing the bala-nce claimed by the plaintiff as it was included in the verdict of the jury.

The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event

Van Brunt, P. J., and Brady, J., concur.