text:
    Harriet A. Grinnell, Resp’t, v. William G. Taylor, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895)

      1. Evidence—Tillage ordinance.
    In an action for an injury caused by the kick of a horse which the defendant, while walking on the sidewalk, was leading in the roadway, a village ordinance, prohibiting any one from leading a horse on a sidewalk in the village is admissible on the question of defendant’s negligence.

      2. Damages—-Personal injuries.
    The value of the plaintiff’s services in her business may be considered in estimating the damages, in an action for personal injuries.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Frederick W. Thomson, for app’lt; C. W. Thompson, for resp’t.
   Hardin, P. J.

Plaintiff in her complaint alleges that on the 22d day of April, 1893, she was traveling on foot upon the sidewalk in the principal street in the village of Alexandria Bay, and that defendant on the same occasion was wrongfully, unlawfully, and carelessly leading a horse along and upon the sidewalk, traveling in an opposite direction, “ and the defendant so carelessly and negligently led and managed his horse aforesaid as to permit his said horse to attack and kick the plaintiff in her back, and in the region of her back, while she was upon or near said walk, which attack and kicking as aforesaid was inflicted upon plaintiff without fault or neglect on her part.” The defendant denied the allegations of the complaint, and alleged that the injuries received by the plaintiff were not due to any negligence, fault, or carelessness of the defendant, but were received by the plaintiff and were caused on account of the plaintiff’s own fault, negligence, and want of care, and that plaintiff inflicted the injuries herself upon her own person. At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the alleged grounds:

“ (1) The plaintiff has failed to make out a cause of action against the defendant. (2) The plaintiff has failed to show any negligence upon the part of the defendant. (3) The plaintiff has failed to show viciousness upon the part of the defendant’s horse, or that he had previous knowledge of any vice in the horse. (4) That the plaintiff, if there was any negligence, herself contributed to the alleged injury.”

The motion was denied, and at the time the court observed:

“I will not hold as matter of law the defendant in this case had a right to lead his horse in such close proximity to the sidewalk when people are passing along. I think I will leave it to the jury, under all the circumstances, to say whether the defendant exercised proper care in the management of this horse, considering where he was and all about it, what the horse was doing, and all the facts.”

At the close of the whole evidence a similar motion, on similar grounds, was repeated by the defendant, and an exception taken to the denial thereof. It is contended by the appellant that the plaintiff failed to show any negligence on the part of the defendant. It appeared that the village of Alexandria is incorporated, and has a population of about 1,500, and that Walton is one of the principal streets; and that on the 22d of April, 1893, the defendant was the owner of a young, strong horse about six years of age, and weighing some 1,250 pounds, and was leading him easterly along Walton street to a blacksmith shop; and there was some evidence that the defendant walked on the sidewalk on the northerly side of the street, and the horse was part of the time walking along the outer edge of the walk, playing prancing, rearing, and occasionally stepping upon the sidewalk; and the defendant was walking abreast of his shoulder, and grasping the halter down to about 18 inches from the head. The plaintiff was returning home from a neighbor’s upon the sidewalk, and met the defendant on the sidewalk near Coy’s house, when she perceived the actions of the horse, and, appreciating the danger, stepped off the walk into Coy’s yard, away from defendant, when the horse kicked her, striking her with one foot in the small of the back, on the left side, over the kidneys. She did not fall but staggered a few steps, and sat down on the piazza in front of Coy’s house. After the kicking, the horse swung around crosswise of the street, with his head toward the walk, and there is evidence that the defendant then said, “ Girl, did he hit you ? ” to which plaintiff replied, “ Yes." Thereupon the defendant said, “ Where did he hit you ? ” and the plaintiff replied, “On my back.” The defendant- then went on to the blacksmith shop, where he left the horse, and returned to the house of Coy, picking up the books which wrnre dropped by plaintiff in the yard when the collision took place.. After sitting on the piazza a few minutes, plaintiff entered the house, when one Blanche Hibbard came down from upstairs into the room where the plaintiff sat, and bathed plaintiff’s hands with hot water, and gave her some camphor. The plaintiff and Miss . Hibbard went into the bedroom, where Miss Hibbard examined the plaintiff’s back, and testifies she saw a large red spot about the size of a tea saucer in the plaintiff’s back, on-the left side. This occurrence was about 11 o’clock in the forenoon, and the plaintiff, after remaining at Coy’s house for a time, walked home, a short distance, and, it is claimed, with the assistance, of the defendant. Miss Hibbard testifies that during the time that defendant was at the house of .Coy she “ heard him say he was just going to tell Mrs. Grinnell to step off the walk.” The witness McCue testifies that he had a conversation with the defendant a few days after the occurrence, and the witness says :

“ I met him on the sidew-alk, and he asked me how the girl was. I told him I could hardly say ; and he made the remark to me, at that time, ‘I was just going to tell her to leave the walk.’ That was the.conversation we had.”

In the course of the testimony delivered by the plaintiff herself, she testifies that when she turned the corner, coming up the street to Coy’s from the lane going back up Walton street, she noticed the defendant coming with a horse at Keeler’s. She says :

“ The horse was prancing, and I noticed Mr. Taylor’s hand,— from the horse’s nose to his hand a rope about like that (indicating),—and I looked up. He had hold of a rope at a distance from the horse’s head of about half a yard, I should think. The other-hand down like this (indicating), by his side, swinging like that; and I started to leave the walk when I saw that,—;saw the horse. I just stepped off the walk into the yard of Coy’s house, when the horse hit me on the left side of my back, and staggered me. I didn’t go down,—it just staggered me; and I put my hand up against the center of the piazza,—there was three posts,—and then I sat down there. When Mr. Taylor got the horse straightened around, so that he could, he said, ‘ Girl, did he hit you ? ' and I said, ‘Yes.’ He said, ‘Where did he hit you?’ I said, ‘On my back.’ He said, ‘'Did he' hurt you much ? ’ And I said, ‘ I don’t think it did. You may go on; you need not wait.’ After kicking me, the horse went out into Walton street, because Mr. Taylor's back was to me when I was sitting on the porch, after I sat down. The horse was standing crosswise of the street. It was a board walk, four feet wide, I think. The horse was stepping on the walk, and .on the ground, first one, and then—Just touching the walk.”

In the course of her cross-examination she says :

“ When I first saw the horse, he wasn’t in the road at all. He was stepping on the sidewalk, and then on the grass,—first one foot, and then the other, by the side of the sidewalk. It was the roadside; the side of the sidewalk, too. * * * He was not exerting himself very much. He was not struggling with the horse to keep him in subjection. He was walking right along, fast.- The halter was drawn kind of taut. He was back from the horse’s neck a little ways. * * * Before I came opposite the horse I hadn’t got into the yard at all. I had just stepped onto the ground when the horse hit me. I had just stepped off the walk onto the ground, hardly started to go, when he hit me; so that I was on the sidewalk, on the side of the walk next to the yard. Mr. Taylór was there next to the road. He wasn’t way out; he was in a little ways on the walk.’’

Other witnesses were called who stated several circumstances observed by them, and related such part of the occurrences as were known to them. The defendant, in the course of ins testimony, says:

“The road was muddy, and the walk there is somewhat lower than the road ; mud and water, and it is pretty muddy there, and I stepped onto the walk’ there, and followed that walk - until I crossed Holland street, and continued till I got to this lane; and there I crossed the street to the shop. The horse at this time was on the street side of the walk. He was not on the walk at any of those times. I was walking on the edge of the walk, leading the horse with my right hand. I had the slack of the halter in my left hand. I had my other hand up to the ring in the halter stall.”

He states that the horse was not prancing when he met her and passed her about opposite the corner of the Coy house, and, in further description of what took place at the time of the alleged collision, he says she stood with her hands out; “seemed scared,— that is what I would call it. She appeared scared ; yes, sir, in fact, was. So that it caused me to say, “What is the matter,' girl?” and she said 11 think your horse kicked me.’ ‘Well,’ said I, ‘If he did, go and sit down on the piazza, and I will put my horse in the shop and come back.’ So she walked in there, over to the piazza.” The defendant called some witnesses, who observed some part of the occurrence relating to the alleged collision, tending to support the theory of the defendant that the horse did not strike the plaintiff. Plaintiff gave evidence to the effect that there was an ordinance of the village relating to the use of the sidewalk thereof, in the following language :

“No person shall ride on horseback, or lead or drive any horse, cattle, sheep or swine, or roll any wheelbarrow on any of the sidewalks in said village otherwise than crossing into or out of their premises, or for the purpose of loading or unloading, or slide or skate on any sidewalk in said village, under penalty of one dollar for each offense.”

The ordinance was properly received, bearing upon the question of the alleged negligence of the defendant. In McGrath v. N. Y. C. Railroad Co., 63 N. Y. 530, it was said :

“ The object of the ordinance was the security and protection of the travelers upon the streets. The defendant must beheld to have known of its existence, and all persons within the city were bound to take notice of it, as if it had been a law regularly enacted by the legislature.”

Near the close of the opinion in that case it is said, viz:

“ A violation or disregard of the ordinance, while not conclusive evidence of negligence, is some evidence upon the question, to be submitted to the jury, with all the other evidence.”

Upon the whole evidence, although it was somewhat conflicting, we think it was a question for the jury to determine whether the defendant, under the circumstances, was guilty of negligence in the management of his horse on the occasion when the alleged injury took place. The case presented differs'very essentially from Smith v. Matteson, 41 Hun, 216; 4 St. Rep. 204, as in that case there was no evidence “that the boy employed was careless in the discharge of his duties” in managing the cow, and there-was “ no evidence that the boys -did or omitted an act which caused the accident.” The evidence called upon the jury to determine whether the defendant failed to use, in the management-of his horse,“ the'reasonable care which a man of ordinary prudence might be expected to exercise under like circumstances.” Such was the rule of law stated in Moynahan v. Wheeler, 117 N. Y. 285 ; 27 St. Rep. 152, by Danforth, J., near the close of his opinion. During the trial the judge properly ruled that the defendant could not be made liable by reason of any supposed viciousness of the horse, as the evidence did not establish it, or that the defendant had knowledge that the horse was vicious, Van Leuven v. Lyke, 1 N. Y. 515, and the doctrine of that case was explained in Moynahan v. Wheeler, supra. In the course of the opinion delivered in Dickson v. McCoy, 39 N. Y. 400, which case involved an inquiry as to whether the defendant had been guilty of negligence in suffering his horse to go at large upon the sidewalk, it was stated that the negligence of the defendant rendered him liable. The following language was used:

“ It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence. * * * If the most gentle horse be driven so neg-

ligently as to do injury to persons or property, the owner or driver will be responsible. Certainly, no less so if the horse be negligently turned loose in the street without restraint or control.”

We are of the opinion that the trial judge properly refused the nonsuit, and that he properly instructed the jury upon the subject of the defendant’s liability, if found guilty of negligence in the management of his horse on the occasion when the "injury occurred to the plaintiff. Crozier v. Read, 60 St. Rep. 215

2. We are of the opinion that, upon the evidence produced at-the trial, the court properly submitted the question as to whether the plaintiff, on the occasion was guilty of contributory negligence. There was evidence tending to support the finding as made by the jury that the plaintiff was free from any negligence, which in any manner contributed to the injury which she received.

3. We thinK tnat no error was committed in refusing to charge the jury that there are no limitations upon the right or use of the highway except the boundaries thereof. If the proposition intended to have the court rule contrary to the ordinance of the village, it was properly refused. The court had already stated that. “ a person in a wagon is not entitled to the.same use of the street as a person on foot. A person on foot has the right to the sidewalk as against a person in a wagon.”

4. The court was asked to charge the jury that “it was not of itself negligence for the defendant to walk upon the sidewalk, and lead his horse in the road at the side of the sidewalk, notwithstanding the horse occasionally, and against his resistance, stepped his foot upon the walk.” In response to that, request the court observed: “I leave it to the jury to say whether, under the circumstances of the case, it was negligence."' We think the court committed no error in that ruling. We think no error was committed by the court in submitting to tbe jury, on the subject of damages, the inquiry as to the value of the services of the plaintiff in her business, and allowing the jury to ascertain the loss by reason of her being interfered with in the transaction of her ordinary business. Walker v. Erie Railway Co., 63 Barb. 260; Ehrgott v. Mayor, 96 N. Y. 276, and cases there-cited. In Kessel v. Butler, 53 N. Y. 612, a witness was asked how much money he made prior to the injury from work at his trade, and objections to it were overruled, and it was held that no error was committed. In Nash v. Sharpe, 19 Hun, 366, it is said :

“It seems to be settled that, in an action for loss of services, evidence of the nature and extent of the party’s business, or how much he was earning from his business, or realizing from fixed wages, is proper upon the question of damages.”

In McIntyre v. Railroad Co., 37 N. Y. 287, it was held that an-inquiry as to what the deceased party usually earned was proper in estimating damages. And at the close of the opinion in Grant v. City of Brooklyn, 41 Barb. 385, it is said :

“Indeed, where the damages are for the loss of services, I see no evidence so unobjectionable and so reliable as that which shows how much the party was earning from his business, or realizing from fixed wages, at the time to which the loss refers.”

Pill v. Brooklyn Heights Railroad Co., 57 St. Rep. 783.

5. The court was asked to charge the jury that “if there was evidence at the command of the plaintiff, and she refuses to produce it, or permit the defendant to use it, that the jury have the-right to infer that such evidence would be unfavorable to the-plaintiff’s case." In response thereto the court observed : “I will allow tbe jury to take that circumstance, and all other circumstances, into consideration in their deliberation.” We think that the answer made by the court was sufficiently favorable, and that no error was committed. Schwier v. Railroad Co., 90 N. Y. 558 Crary v. Crary, 46 St. Rep. 307.

6. We think the verdict was not against the weight of evidence, and that the questions of fact were properly determined by the jury, ana that the damages allowed to the plaintiff are not excessive. Fisher v. Smith, 46 St. Rep. 309; Crozier v. Read, 60 St. Rep. 215.

Judgment and order affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    The People ex rel. William H. Ewell, Pl’ff, v. James A. Roberts, as Comptroller, etc., Def't.

      (Supreme Court, Ulster Special Term,

      Filed January, 1895.)

    ■Office and officer—Compensation—Certificate of appointment.
    Under chap. 717 of 1894, a veteran may be appointed in the public service, where the compensation does not exceed four dollars per day, without reference to the civil service rules and laws ; but the appointing officer must inform the civil service commission that the appointment was made in accordance with law, and such commission must certify the fact of such appointment to the comptroller, before it becomes the latter’s duty to make payment to the appointee of his compensation.
    Application for a writ of mandamus to compel the comptroller to pay relator his salary as clerk in the office of the secretary •of state.

      Robert G. Scherer, for relator; Myer Nussbaum and William E. Kisselburgh, Jr., Dep. Atty. Gren. for resp’t.
   Parker, J.

The secretary of state, on the 11th day of June, 1894, appointed the relator, William H. Ewell, to a clerkship in the secretary of state’s office, at a salary of four dollars per day. At the time of such appointment, Ewell was a resident of this state, having served in the army of the United States during the late war, from which he had been honorably discharged, and was, therefore, eligible to the position to which he was appointed, pursuant to the provisions of chapter 717, Laws 1894. It is, indeed, conceded that the action of the secretary of state in making the appointment was in all respects lawful and proper, and that by virtue of the appointment the relator became entitled to received from the state compensation at the rate of four dollars per day, payable monthly; the comptroller's refusal to pay being based wholly upon his understanding that the statutes require that before he may draw his warrant for compensation he must have a certificate of the civil-service commission of the legality of the appointment of every person in the classified service of this state, and that the relator is within the classified service. In other words, his contention is that, while the statute authorizes the appointment in the state service of persons in a like situation with the relator without reference to the civil-service rules and laws of this state, such appointment must, nevertheless, be evidenced to the comptroller by a certificate of the civil-service commission; that, before the comptroller can make any payment whatever to a person purporting to be in the employ of the state, the comptroller must be informed of "the fact through the channel and in the manner provided by law.

The provision of the act of 1894 bearing upon this question reads as follows:

“But the civil-service rules and laws of this state shall not apply to such persons, residents of this state, who served in the army 0/navy of the United States in the late war, and have been honorably discharged therefrom, for any position or employment, the compensation of which does not exceed four dollars a day, in the public departments and upon all public works of the state of New York, and of the several cities, counties, towns and villages thereof."

It will be observed that this provision does not suggest the manner in which the comptroller shall be informed of an appointment made under it, but docs provide that, so far as the appointment is to a position or employment, the compensation of which does not exceed four dollars per day, the civil-service rules and laws of this state shall not apply.

The error into which the relator has fallen seems to me to have been founded upon a construction of the provision which gives to it the effect, not only of taking the appointment of persons situated like himself from under the civil-service rules and laws of the state, but also of depriving the civil-service commissioners of the right, and to relieve them from the duty, of making certificates, for the use of the comptroller, of the appointment of every person in the classified service of the state, which includes relator’s position as provided by section 7, c. 354, Laws 1883, as amended by chapter >681, Laws 1894. These statutes provide for a body, known as the “Oivil-Service Commission,” which is given exclusive control and authority with reference to the classification of all positions in the state service, competitive or noncompetitive, exempted or otherwise. And it is further made the duty of the commission to keep in its office a complete list of all officers, clerks, and other persons in the public service of the state, in either of the classes appointed or ■employed, and to certify to the comptroller every change occurring in any such office or employment forthwith on the occurrence of the change. Further, the comptroller is forbidden to draw his warrant for the pajunent of any salary or compensation to, any ■officer, clerk, or other person in the public service of the state in either of said classes who is not so certified as having been appointed in pursuance of law, and of the rules and regulations made in pursuance of law. It is apparent that one of the purposes which the statute has in view is to keep the comptroller’s office accurately informed as to all persons in the classified service of the state entitled to compensation for services. If the statute under which the relator was appointed can be so construed as to make it no longer the duty of the commission to certify to the employment of persons in the classified service, when appointed under the provisions of the statute exempting honorably discharged soldiers from the civil-service rules and laws of this state, then the statutes could no longer provide for a complete and harmonious system governing the keeping of the record relating to those in the employment of the state under the classified service. But if the statutes be construed together, as I think they should be,- then the entire scheme is consistent and harmonious.

A person situated as this relator may be appointed in the public service, where the compensation does not exceed four dollars per day,without reference to the civil-service rules and laws. And when the appointment is made it becomes the duty of the appointing officer to inform the civil-service commission that the appointment, was made in accordance with law. This being done, the statute-enjoins upon the civil-service commission the duty of certifying the fact of such appointment to the comptroller, whose duty it is thereafter to make payment to the appointee of his compensation as he shall become entitled to it. This was not done, and therefore the comptroller had a right to insist upon a compliance with the statute. Relator’s proper course was to have requested the civil-service commission to make the necessary certification, and had the request been refused it could thereafter have been enforced by mandamus. The application for a writ of mandamus should be-denied, but without costs.

Application denied, without costs.


author: Davy, J.

text:
    Daniel Schout, Jr., Pl’ff, v. Conkey Avenue Saving, Aid and Loan Association, Def't.

      (Supreme Court, Monroe Special Term,

      Filed February, 1895.)

    1. Corporations—Directors—Liability-.
    An absent director may be held equally responsible with his associates, in case of extreme neglect of duty in omitting to attend the board meetings, or where the wrongful acts of his associates have come to his knowledge, and he acquiesces and takes no steps to avert their injurious consequences when, by due diligence, he might have prevented the wrongful ■ acts from being done.
    2. Same—Stockholders—Estoppel.
    A stockholder in á corporation, who participates in an unauthorized act prejudicial to his interest and acquiesces in the transaction, is estopped from afterwards complaining, either in his own behalf or in the behalf of' the corporation.

      F. B. & F. S. Hutchinson and H. J. Stull, for pl’ff; Edwin McKnight and H. Nelson Peck, for def't.
   Davy, J.

This action is brought to recover $1,210.35, it being-the amount credited to the plaintiff upon the books of the defendant for principal and dividends. It appears'from the evidence that, the plaintiff, who was a member of the defendant loan association, on the 16th day of December, 1891, filed a written notice withdrawing his moneyed interests in the association. Article 14, § 2, of the articles of association provides that members not having received a loan may withdraw one or more of their shares from the association at any time by giving notice in writing to the board, and the liability to pay further dues and the right to dividends shall cease with the filing of said notice. Applications for withdrawals shall only be received in the regular order of business,, and the principal theretofore paid on such share or shares shall be refunded to such members as soon as- necessary funds are in the treasury. The plaintiff bases his right to recover in this action upon the ground that the money which was in the treasury when Ins withdrawal notice was filed, instead of being applied upon his claim, was loaned to its members, contrary to the rules of the association. There can be no question but what the officers and members of the defendant were bound to observe the rules prescribed in its constitution and by-laws, which were printed in a book issued to every shareholder, who was presumed to know what they were. The powers and duties therein expressed and imposed were binding upon the association and its members. The defendant therefore had no legal right to disregard them by appropriating any of the money in its treasury to the making of loans, while the plaintiff’s withdrawal notice was on file, until his claim had been paid in full.

In the case of Wolfe v. Conkey Ave. etc., Association, 75 Hun, 203 ; 58 St. Rep. 656, which was an action against this same defendant, Dwight, P. J., says;

“The defendant had no right, under the article of its association, to appropriate any of its funds to the making of loans while withdrawal notices were on file which had not been honored.”

The plaintiff, therefore, under the decision of the court in the case lasted cited, was entitled to the payment of his claim when reached, and if the directors disregarded the rules of the association, and loaned money to its members which should have been applied in payment of its indebtedness to the plaintiff, the defendant is liable in this action, unless the plaintiff has waived his right to the fund, or has done some act which, under the rules of equity, estops him from maintaining this action.

It appears from the evidence that at the time the loans were made the plaintiff was one of the directors of the defendant, and approved of the Boss loan, which he now concedes was made contrary to the rules of the association. He attended the meetings of the board from time to time during the period that the other irregular loans were being made. As a director, he had access to the books of the association at all times, and he knew, or ought to have known, that his associates were making the loans which he now contends were unauthorized. While directors, as a general rule, are not liable for errors of judgment, unless they are grossly wrong, yet, by accepting the trust, they are obliged to faithfully execute it. The plaintiff, therefore, by accepting the office of director, was required to execute it with fidelity and reasonable diligence. It was his duty to attend the meetings of the board with reasonable regularity, and to exercise ordinary diligence in ascertaining the financial condition of the association. He knew that the Boss loan, which received his approval, was irregular. That fact was sufficient to have put any prudent man, who was acting as a director, on his guard, and upon inquiry as to whether other loans of that character were being made. If he grossly neglected his duties, he cannot claim protection on that ground, but must be held, in the eyes of the law, just as responsible for the irregular loans as the other directors. The learned counsel for the plaintiff seeks to avoid the forcé of an equitable estoppel by claiming that the plaintiff was ignorant of these loans, with the exception of the Boss loan, The evidence in the case does not warrant me in reaching such a conclusion. It appears that he attended at least fifteen .meetings while he was a director, and one of the officers testified that he attended the meetings of the board regularly. It will not. do to permit him to plead ignorance on the ground of neglect of duty. The rule is that an absent director may be held equally responsible with his associates, in case of extreme neglect of duty-in omitting to attend the board meetings, or where the wrongful acts of his associates have come to his knowledge, and he acquiesces, and takes no steps to avert their injurious consequences, when, by due diligence, he might have prevented the wrongful, acts from being done. Knowlton v. Spring Co., 57 N. Y. 518-537 ; Knox v. Baldwin, 80 id. 612; Robinson v. Smith, 3 Paige, 222; Hyatt v. Clark, 118 N. Y. 567; 29 St. Rep. 851; Adams v. Mills, 60 N. Y. 538; Lindner v. Sahler, 51 Barb. 323 ; Briggs v. Easterly, 62 id. 51; Bronson v. Dimock, 4 Hun, 614.

The law seems to be well settled that even a stockholder in a. corporation, who participates in an unauthorized act prejudicial to his interest, and acquiesces in the transaction, is estopped from afterwards complaining, either in his own behalf or in the behalf of the corporation. It was held in Sheldon, H. B. Co. v. Eickemeyer, H. B. M. Co., 90 N. Y. 612, that where stockholders, with full knowledge, ratify a transfer, and affirm the settlement, the-act, though beyond the power given the trustees by the charter, could not be subsequently avoided by the stockholders or by the corporation. The learned judge who wrote the opinion of the-court says :

“ It is not needed, in such a case, that there be an express assent on the part of the stockholders to work an equitable estoppel. When they neglect to promptly and actively condemn the unauthorized act, and to seek judicial redress after knowledge of the committal of it, this will be deemed an acquiescence in it.” Kent v. Mining Co., 78 N. Y. 159-187.

The rule in regard to directors is much mor.e strict. They are-intrusted with the management of the corporate business, and are-required to exercise the same degree of diligence and care that men of ordinary prudence and skill usually exercised in the management of similar business for themselves. The business of the defendant could not be done except by its directors, who are required to exercise a general supervision over the affairs 'of the association. • The shareholders had a right to assume that the directors would do their duty, and if they did not they had a right, to hold them personally liable for a gross neglect of duty. The law on this subject is clearly stated by Judge Earl in Hun v. Cary, 82 N. Y. 65. He says :

“ The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits, and. cause damage, they incur liability.”

He also says that:

“ When one deposits money in a savings bank, or takes stock in a corporation, thus divesting himself of "the immediate control of his property, he expects, and has a right to expect, that the-trustees or directors, who were chosen to take his place in the management and control of his property, will exercise ordinary care and prudence in the trusts committed to them,—the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice, and public policy unite in requiring of him such a degree of care and prudence, and it is a gross breach of duty not to bestow them.”

If the plaintiff in this action had attended to his duties properly as a director, he certainly must have known the nature and extent of the business that was being transacted by the board, and that unauthorized loans were being made. It would be unj ust, therefore, to permit him now to take advantage of his own negligent acts, to the injury of innocent shareholders who have filed their applications of withdrawal. In Knox v. Baldwin, supra, Judge Danforth says: “ A director cannot be, permitted, either alone or with his associates, to pursue a remedy which, if enforced, would" enable him to profit by his own wrong or negligence.” The plaintiff, therefore, is estopped from maintaining this action, and must wait until the defendant collects a sufficient sum to pajr his-claim as provided by its constitution and by-laws. The complaint, therefore, is dismissed, with costs.


author: Beekman, J.

text:
    William J. Madden, Resp’t, v. Equitable Life Assurance Society of the United States, App’lt.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    Contract—Construction.
    Under a contract whereby the plaintiff’s compensation is to be computed “ on premiums on policies issued through his instrumentality, and shall accrue only as the premiums are paid to said society in cash.” the-defendant cannot escape liability for commissions, where it arbitrarily and without any reason refuses to accept a risk procured by plaintiff.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Charles B. Alexander and Charles C. Deming, for app’lt; Samuel Wyman Smith and Raphael J. Moses, for resp’t.
   Beekman, J.

The complaint alleges that at the times mentioned therein the plaintiff was a life insurance agent, and had a contract with the defendant, a copy of which is annexed to the pleading ; that about the month of September, 1889, the plaintiff obtained from one Harry Miner an application in the usual form, signed by him, for a policy of assurance in the defendant company on his life for $100,000, and forwarded the same to the company for its action; that s^id policy was what is technically called a “ 20-year endowment policy,” and the annual premium was $5,895, and that the said Miner was able to pay the premium on the said policy, and was physically and otherwise a good and desirable risk ; “ that, arbitrarily, and without reason, cause, or justification, defendant refused to have the said Miner physically examined, and refused to issue a policy ; that plaintiff has performed all the conditions of the contract hereto annexed to be performed by him, and, by reason of defendant’s arbitrary refusal to have the said Miner examined, and to issue a policy to him, plaintiff has been deprived of the following commissions, as per contract annexed.” The subsequent allegations relate to the element of damage, and are not material to the question raised by the demurrer. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled below, and this appeal has been taken from the interlocutory judgment entered upon the decision.

The contract which is made a part of the complaint was entered into between the plaintiff and defendant on the 12th day of October, 1888. It provides that defendant thereby appoints the plaintiff “to procure applications .for assurance on the lives of individuals, and forward the same to the said society for its action, and for the purpose of collecting and forthwith paying over such premiums on .assurance as shall be directed by the said society, and for no other purpose whatsoever.” The plaintiff was under agreement to remain in the service of the defendant for a term of five years from October 1, 1886, subject, however, to the right on his part to annul this requirement upon the payment of a specified sum of money. The defendant, however, reserved to itself the right to terminate the contract at any time by giving the plaintiff written notice to that effect. The plaintiff also agreed that he would devote his whole time and all his energies to the service of the defendant, and to act exclusively for it so far as first to tender to it all risks obtained by him or under his control. He was to be paid by the defendant a “ compensation to be allowed on premiums on policies issued through the instrumentality of the said party of the second part [the plaintiff],” and elaborate provisions are made for the purpose of affording a measure for determining these commissions on the basis of the various kinds of insurance in which the defendant dealt. They were to accrue only as the premiums were paid to the defendant in cash, and were to continue to be paid to the plaintiff, his executors or administrators, for the term of twenty years from the date of each policy, while in force during said term. The contract also provided that the plaintiff should not be entitled to commissions on assurance unless, in the opinion of the president of the defendant, the same were fairly effected through the instrumentality of the plaintiff, and by him introduced to the society ; and in all cases where the claim to commissions was disputed the decision of said officer should be binding and conclusive. The plaintiff was also to perform such other necessary duties as might be required in connection with the general business of the society, without further compensation than the commissions which he was to receive as above stated. The sphere of his duties was the Hew York metropolitan district, but it was not assigned to him exclusively. The contract also contained other stipulations not deemed material to the disposition of the question before us."

From the summary thus given it is apparent that the plaintiff assumed an obligation towards the company which involved the devotion of his entire time to its service, and the assumption of duties of considerable magnitude, involving, it may be inferred, the employment of a staff of employes, and the incurring of considerable expenditure. The defendant contends that under the contract it is under no obligation to the plaintiff to do anything except to pay him his commissions on the issuance of a policy. But if this contention is sound the company may continue to hold the plaintiff to his duties during the five years of obligatory service, while denying to him the means of livelihood, through a capricious and unreasonable refusal to accept any risks tendered by him. A contract must be so clear and certain as to admit of only such a construction, in order to justify a conclusion of such harshness. But we do not think the contract before us requires us to hold the plaintiff to any such unreasonable view of the duties he has undertaken and the rights he has acquired. In construing a written contract, it is the duty of the court to ascertain the true purpose and intent of the parties, placing itself as nearly as may be in their position, and availing itself of the light of attendant circumstances, and, without doing violence to obvious meanings arising from the text of the writing, to give a fair, just, and reasonable exposition of the compact, to the end that it may be fair, just, and reasonable in its operation and results to the contracting parties; for it is certainly not to be inferred that anything less than this could have been intended. In entering upon the engagement it is not to be doubted that both of the parties to the contract in question expected that the act of the plaintiff in forwarding applications for insurance would be followed by bona fide action on the part of the defendant upon the risk. The whole scheme of the contract—the complete surrender by the plaintiff of his whole time and skill to the service of the defendant—reasonably requires honest and intelligent action by the latter upon the risk offered, and we find no difficulty in holding that such was the obligation assumed by the defendant towards the plaintiff.

Now, what was the action contemplated? Clearly not that the defendant should thereupon accept the risk and issue its policy, for that would be giving the plaintiff the power to make the insurance and bind the defendant in that regard,—a power which, clearly, the contract does not confer. But it is plain that the defendant was entitled to the full and free exercise of judgment by the defendant in determining whether the risk offered was safe and desirable; and if it was considered undesirable the company had the right to reject it, and its judgment in that regard could not be reviewed. Life insurance is subject to such contingencies, and the merits of each individual risk are involved in such uncertainty, that ordinary prudence and the efficient management of the affairs of the company would seem to require that the officers of the defendant should be entirely free to accept or reject each application upon its merits. This construction does not conflict with any of the provisions of the contract, and must be considered as a condition of the business in reference to which the contract was made. But, conceding all this, the plaintiff was none the less entitled to have the application in question treated in good faith, and seriously considered, in reference to its desirability as a risk to be assumed, from the standpoint of the interests of the company ; in other words, he was entitled to action, not disregard or evasion. How else are we to construe the action of the defendant in the case before us than as a -violation of this duty to the plaintiff? By demurring it admits the facts set forth in the complaint, which avers that Miner was able to pay the premiums on the policy applied for, and was physically and otherwise a good and desirable risk. "Upon such an admission as this the logical conclusion is that action should have been favorable, and the policy issued. The law requires that pleadings should be liberally construed with a view to their support, and the averment above mentioned, coupled with the statement of the refusal of the company to issue a policy, may fairly be taken to support the conclusion that the defendant had not acted upon the application upon, its merits within the meaning of the contract. The allegation as admitted fairly imports that the application was one which the defendant considei'ed to be acceptable and desirable, and upon which its policy might be issued with advantage, but which it rejected for reasons having no proper bearing upon the question, and which were not within the contemplation of the parties when the contract in suit was made. The" position of the defendant under the contract was one, not only of invitation to, but of positive injunction upon, the plaintiff, to seek and transmit to it applications for insurance, without limit as to amount, and his compensation was made dependent upon the success of his efforts. In fact, under the requirement of exclusive attention to the business of the company, his means of support were dependent upon the bona fide action of the company upon applications obtained by him. If, then, the company might uni-easonably disregard one, it might similarly treat all, and thus drive the plaintiff from its employment, and compel him to pay the forfeit exacted by the contract for the privilege of terminating it. Such a possible result seems to demonstrate the fallacy of the claim of arbitrary privilege in the defendant to disregard the services of the plaintiff, although worthy of the rewai'd comtemplated by the agreement. The fact that the plaintiff’s compensation is to be 'computed “on premiums on policies issued through the instrumentality of the plaintiff, and that they shall accrue only as the premiums are paid to said society in cash,” does not defeat a recovery because no policy was issued. The defendant cannot escape liability by claiming the benefit of a condition which results from its lack of good faith. Taylor v. Enoch Morgan's Sons Co., 124 N. Y. 184; 35 St. Rep. 68. In this case a commercial traveler agreed to travel and sell defendant’s goods, for which the latter agreed to pay him a commission on all orders accepted from bona fide purchasers; Certain of these oi’ders wez-e refused, and the agent brought suit to recover his commissions. The defense was that the oi'ders had not been accepted, and the commissions were therefore not earned under the conditions of the contract. Upon this the court says:

“The referee allowed the plaintiff commissions upon orders from responsible parties which were not,accepted by the defendant. We incline to the view that it was the duty of the defendant to accept all orders presented by the plaintiff, from bona fide purchasers, which were made in accordance with the provisions of the contract, and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned, at his own expense, six times a year, with a right on the part of the defendant to reject every order presented by him, and to thus deprive him of any commissions.”

While the two cases differ widely in their facts, the principle of the decision is broad enough to include the case at bar. The defendant’s counsel criticises the use of the words, “arbitrarily, and without reason, cause, or justification,” with which the plaintiff has characterized the refusal of the defendant to act upon the application, and claims that they state conclusions of law, and are therefore not admitted by the demurrer. It may be" conceded that, standing by themselves, the objection is well taken, but we are of the opinion that without them a prima facie case is stated under the liberal views respecting the construction of pleadings. In effect, the allegations of default on the part of defendant import that the risk offered was one which should have been accepted by the company, and upon which its policy should have been issued, but that its rejection was arbitrary and without color of justification. The construction of the contract which we have adopted involves no hardship to the company. It simply exacts good faith towards its agent. It does not require the acceptance of any application if, in the judgment of the officers of the company, the risk is not desirable; that is, one which the company is not willing to take, considering the question from the standpoint of the business interests of the corporation. If such action has been taken by them in the present case, it would be a defense which the defendant can and should present by answer. We express no opinion upon the measure of plaintiff’s recovery, as the question does not arise upon the issue before us. ±n view of the conclusion to which we have come, it follows that the order and interlocutory judgment overruling the demurrer should be affirmed, with-costs, with leave to the defendant to answer within twenty days, on payment of costs.

McAdam, J., concurs. Sedgwick, C. J., not participating.


author: Sedgwick, C. J.

text:
    Mart A. P. Draper, Resp’t, v. Nelson H. Salisbury, App’lt.

      (New York, Superior Court, General Term,

      Filed March 4, 1894.)

    1. Pleading—Party .
    The addition of the words, “ assignee for the benefit of creditors,” etc., to the name of the defendant in the title of the complaint, does not affect the nature of the action, where the complaint makes no demand against him , as assignee.

      2. Assignment for creditors—Lease.
    When the occupation by an assignee for- the benefit of creditors of premises leased to the assignor supports a finding of the acceptance of the lease by the assignee.
    Appeal from a judgment, rendered on a trial without a jury.

      Henry G. Atwater, for app’lt; Henry A. Forster, for resp’t.
   Sedgwick, C. J.

The action was for rent against Mr. Salisbury personally, not against him as trustee or assignee. The addition, “ Assignee,” etc., to his name in the title is a descriptio personae. The complaint on its face makes no demand against him as assignee. His liability rests upon his personal acts, done, it may be assumed, for the benefit of the estate. The defendant had become the assignee of Abraham Steers for the benefit of creditors under the statute. The assignor made no schedule of his assets, and therefore the defendant proceeded to make a schedule of assets. In them he placed the following: “ Lease made between- and Abraham Steers of yard East river, between 126th arid 127th streets. Rental, $5,000 per annum, to run from May 1, 1893. Nó value.” The main question upon the trial was whether the defendant made himself assignee of this lease by accepting it or taking the term of it, so that by privity of estate he became bound by its conditions. The learned judge found that the defendant, the next day after filing his bond, about December 18, 1893, took possession of the premises described in the complaint, and remained in possession thereof until May 1, 1894; that the defendant used the premises for the purpose of storing the lumber which he found thereon, and sold said lumber on the premises, and delivered it from the premises until after May 1, 1894. Besides these facts, were to be considered whether the defendant used the qualified right of an assignee to go oh the premises and remove the goods therefrom in a reasonable time, to be judged by the circumstances, or used the premises beyond that, and for the benefit of the estate. This, of course, was a question of fact, which the judge has answered by his decision.If the premises were used beyond the time necessary, it is very material to the issue of acceptance. On two occasions the defendant said in writing that he disclaimed accepting the lease, and that he did not accept the lease. This was not irrefutable proof that he did not accept. The proof of the other facts of the case showed that he had in fact accepted. Perhaps what he did amounted in law to an acceptance, although he did not know their legal effect. The court had to pass upon that legal effect, and did so. If the facts adverted to did not by themselves sustain the finding of acceptance, the following circumstance was sufficient to sustain it: The answer alleges that about April 30, 1894, the plaintiff herein 'commenced an action in the district court, etc., in which the said demised premises are situated, against Abraham Steers as tenant, and this defendant as assignee, to recover possession of said premises for nonpayment of rent, etc. On or about the 4th Mav,1894, a dispossess warrant against Abraham Steers as tenant, and this defendant as assignee, was duly issued, and that thereunder the plaintiff took possession of the said demised premises. A summons in this proceeding was served upon the defendant. Whether he appeared or did not appear, he was bound by theaadjudication that he was liable for the rent, which could only be as assignee of the lease in question. Nemetty v. Naylor, 100 N. Y. 562.

Judgment affirmed, with costs.


author: Merwin, J.

text:
    Michael E. Tiernay, Resp’t, v. Syracuse, Binghampton, and New York Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    1. Master and servant—Fellow.
    The trainmen of a company, which runs its trains over the road of another company under a contract, whereby the latter’s superintendent arranges all the time tables and controls the conductors of the former company, are not fellow servants with the latter’s employes, though both roads have the same general manager, and the same superintendent on the division where the accident occurred.
    2. Same—Test.
    The test of a master’s responsibility for the acts of his servant is not whether it was done in accordance with his instructions to the servant, but whether the act was done in the prosecution of his business.
    3. Damages—Excessive.
    „ Under the facts of this case, it was held that a verdict for $10,000 was not excessive.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Louis Marshall, for app’lt; William Kennedy and J. & T. E. Courtney, for resp’t.
   Merwin, J.

This action is brought by the plaintiff to recover damages for personal injuries sustained by him on the 3d day of November, 1890, at a collision between a passenger train of the defendant and a freight train of the Delaware, Lackawanna & Western Bailroad Company at a small station on defendant’s road called “ Bock Cut,” which - is about three miles southerly of the city of Syracuse. At that time the defendant owned, controlled, and operated a line of railroad, extending from the city of Syracuse to the city of Binghamton. The Delaware & Lackawanna Company owned or controlled a line of railroad running southerly from Binghamton, and also a line extending northerly from Syracuse to Oswego. There then existed a contract between the two companies, which was made the 8th January, 1858, by which the defendant agreed “ to allow the use of its road track to the party of the second part [the Delaware & Lackawanna Company] for the purpose of transporting coal thereon, which road track shall be kept in good running order by the party of the first part [the defendant.] ” The Delaware & Lackawanna Company agreed to pay the defendant a certain sum per mile for every ton of coal transported by it (the Delaware & Lackawanna Company) over the defendant’s road, and agreed that it would transport at least a certain amount each year over the road, and would make the defendant’s road its principal avenue for the transportation of coal destined for the Lakes, Canada, and points in Northern & Western New York. For returning empty coal cars over defendant’s road no charge was to be made by defendant, and the Delaware & Lackawanna Company was allowed to carry on the returning cars certain kinds of freight, and pay a certain sum per ton per mile. It was also agreed :

“ That the time-tables of the various trains over the Syracuse, Binghamton & New York Railroad shall be arranged by the superintendent thereof, and so regulated as to afford the party of the second part all needed facilities for .running such number of coal trains daily as the business under the contract shall require; passenger trains in all cases to take precedence, coal and freight trains going north to take precedence of those going south. Conductors of coal trains shall be under the control and subject to the orders of the superintendent of the Syracuse, Binghamton & New York Railroad. The rate of speed of coal trains shall be restricted to ten (10) miles per hour. All turnouts, side tracks, and switches on the line of the road necessary for the convenient transit of the trains shall be furnished by the party of the first part. And the party of the second part hereby agrees to transport over the road coal in equal monthly quantities, as nearly as the season of the year and the natural course of the trade will permit.”

There were other provisions in the contract that need not be referred to here.

The plaintiff, on the Sd day of November, 1890, was in the employ of the Delaware & Lackawanna Company as a brakeman, and had been for a number of years. He was one of the crew of a coal freight train of that company that was made up at Great Bend, in the state of Pennsylvania. It left that place on the morning of that day, and proceded on a railroad of the Delaware & Lackawanna Company to Binghamton, where it took the road of the defendant, and proceeded thereon, under the contract referred to, to Syracuse. There the coal was left. The engine turned round, and started back with a train of empty" cars and the same crew. They left Syracuse about five o’clock in the afternoon, reaching Rock Cut about half past five ; and there, by the direction of the train dispatcher of the defendant at Syracuse, they took a side track, and waited for the passage of the north bound passenger train of the defendant. This came along a few minutes before six o’clock, and by reason ofthe negligent manipulation of the southerly switch at that point by one Clark, an employe of the defendant at that station, it was partially thrown upon the side track on which the plaintiff’s train was, and the engine on which he was then engaged was struck, and the plaintiff injured.

On the part of the defendant it is claimed (1) that the plaintiff and Clark were fellow servants, and the defendant therefore not liable; and (2) that Clark, in manipulating at that time the switch, was acting beyond the scope of his employment, and therefore, the defendant not liable. The trial court held, as matter of law, that plaintiff was not a fellow servant of Clark, or coemploye, and sub-. mitted to the jury in question whether Clark was then acting within the scope of his employment. The jury in effect found that he was.

1. The first proposition is based on the idea that, at the time of the accident, both were under the exclusive control of the defendant. In the contract it was provided that the conductors of coal trains should be under the control and subject to the orders of the superintendent of defendant. The coal trains were to be, and were, run on the time tables of the defendant. Still, under the contract, the business of each was entirely separate. The defendant did not run the coal trains or transport the coal. The men on those trains were not in defendent’s employ or in its business. It appears that the same person was general manager of both roads, and one person was superintendent of both on a division extending from Oswego to Binghamton. Still this did not consolidate the corporations or make the business of each the same. The superintendent testified that he sometimes discharged delinquent employes on coal trains, and put others in their places, but that this was only done when the men had violated the rules of the road, and the occasion had arisen while the train was on his division. This, as the witness said, was “for the protection of the public and the protection of our own property and the protection of everybody on the road.” The general manager told him, “Make the men on the Delaware and Lackawanna obeyed the rules, or discharge them.”

In Sullivan v. Tioga Railroad Co., 44 Hun, 304, the plaintiff’s intestate was an employe of the Erie Railroad, and at work in its yard at Elmira. He was injured by reason of the negligence of the employes of the Tioga Railroad Company in charge of a locomotive of that company in the yard. It was held by this court that the plaintiff’s intestate and the defendant’s employes on the locomotive were not co-servants, although the Erie road owned and controlled the yard, and, when the defendant’s locomotives were in it, the servants employed on them were under the exclusive control of the officers of the Erie road, who directed how locomotives should be run, at what speed, what precautions should Le used, and what signals given. This case was affirmed in the court of appeals, 112 N. Y. 643 ; 21 St. Rep. 827; and it was said that the defendant and its employes used the yard of the Erie road under such regulations as were imposed as conditions of use, not of service, and so the intestate was in respect to his employment a stranger to the defendant. The case of Smith v. N. Y. & H. Railroad Co., 19 N. Y. 127, is inferentially in the same direction. The case of Zeigler v. Railroad Co., 52 Conn. 543, is very much in point. There the Danbury & Norwalk and the Shepaug Bail-roads formed a continuous line. By an arrangement between the two companies, a train owned and run by the Shepaug- company went over both roads to a certain point and back daily, the Dan-bury & Norwalk Company paying the Shepaug company monthly an agreed price for the service upon its road. The train, when on the road of the Danbury & Norwalk Company, was under its general control, and governed by its rules, and it had entire control of the hands upon it, including the right to discharge any of them for neglect or any improper conduct while on the road ; but the Shepaug company was at liberty to use what engine and employ what hands it pleased. The plaintiff was a brakeman on this train, and was injured by a collision with a .train of the Danbury & Nor-walk Company on its own road, caused by the negligence of the conductor of that train. It was held that the plaintiff was not an employe of the Danbury & Norwalk Company, and that the conductor of the other train was therefore not his fellow servant.

Numerous cases are cited by the learned counsel for the appellant, but they do not, we think, reach the present question. The power of defendant’s superintendent in certain cases to discharge men on the coal trains is specially dwelt upon, but that is to be construed with reference to the object to be attained under the contract. The coal trains were not the defendant’s trains, nor were the men in its employ. -We think that upon this subject the trial court did not error.

2. The accident at Rock Cut was occasioned by the act of Clark in moving the switch so that the passenger train was thrown on the side track. Clark was a young man, about seventeen years old, and had been at that place about a week. He was the only employe of the defendant stationed at that place. It was a telegraph station, and Clark was the operator. The main line of the defendant has but one track, and at Rock Cut there is a side track on each side. The switch there that was operated on the occasion in question was what is called the “Wharton Safety Switch.” There is a heavy ball on the lever, which must be raised and held up in order to allow a train to pass onto the side track. When the ball was down on the ground, the main track was unbroken. -The switch could be locked down by means of a padlock. Clark seems to have received his instructions as to his duties from his predecessor at that place. He was told that it was his duty toflagthe highway crossing, and keep a train sheet, and telegraph to the main office the passage of trains; that in the morning a southbound passenger train and a, north-bound coal train met at that place, and it was bis duty to then operate the switch so that the coal train would enter on the side track, and allow the passenger ' train to go by ; and he understood that, when other trains met at that place, he did not have to turn the switch, but the men on the trains would do it themselves. A key to the switch was given him, and he understood it was his duty to lock it nights, and that it might remain unlock during the day. The hours of Clark at the station were from seven in the morning to six in the afternoon. Ten or eleven regular train’s passed each day during his working hours. There was a pair of scales there that he operated. The place was a flag station, where passenger got on and off. There was a "small building or shanty there, where the mail ,had been formerly received, but was not then, and one of ihe rooms was used as a telegraph office. Hpon the evening in question, the switch was unlocked. The ball was down, and, had Clark not touched it, the train would have passed safely. Clark, when he saw the train from the south approaching, was in the office. He came out, picked up his lantern, and signaled the train that the crossing was all right, and then, as he testifies:

“I swung my lantern, and then I had an idea that the switch ■ was wrong. These two trains leave here in the morning,—the one from the north and the one from the south,—and the train from the north comes down the main track. It is my business-when I go down in the morning to let this train from the south in on the side track, and it was in such a flash that I got mixed up on the rhorning and evening. I thought I ought to let the express in on the side track. I let it in. I went up to the switch and raised the lever. The engine and about two cars and a half got in on the side track, and I realized my mistake, and dropped the lever. I tried to right the mistake. I threw the rear end of the Pullman onto the main track. The rest of the train was on the main track, and the part that was smashed was on the side-one.”

He also says:

“ I had an idea that the train ought to go in on the siding, the same as the morning. * * * I ran as fast as I could from the-crossing to the switch. I had a cattle guard and culvert to pass. I started with the impression that I had got to turn the switch,, and didn’t change that impression until I dropped the ball. I gave no other signal for the train to stop.”

The test of a master’s responsibility for the act of his servant is not whether it was done in accordance with the instructions of the master to the servant, but whether the act was done in the prosecution of the master’s business. Cosgrove v. Ogden, 49 N. Y. 255.

In Molt v. Consumers' Ice Co., 73 N. Y. 543, the following-propositions are laid down :

“ For the acts of a servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interests, the latter is responsible, whether the act be done negligently, wantonly, or even willfully ; the quality of the act does not excuse. But if the servant, without regard to his service, or to accomplish some purpose of his own, acts maliciously or wantonly, the master is not liable. Where, therefore, an action is brought against the master for the wrongful act of the servant, the inquiry is simply whether the wrongful act was in the course of the employment or outside of it.”

The master may be liable, though the servant is reckless and foolhardy. Ochsenbein v. Shapley, 85 N. Y. 222. So he may be for acts of injury and insult if they occur in the course of the employment. Palmeri v. Man. Railway Co. 133 N. Y. 261; 44 St. Rep. 894. Ordinarily the question is one for a jury to decide. Mott v. Consumers' Ice Co., 73 N. Y. 550, and cases cited.

Under the circumstances of the present case, we are of the opinion that the question whether Clark was at the time of the accident acting within the scope or course of his employment was properly left to the jury. Olark was placed by the defendant in. control of the switch,-as he was given a key to it. For some purposes he was authorized to manipulate it, and if he exceeded his instructions, to the injury of a third party, the defendant who furnished him the means and opportunity to cause the injury, should bear the loss, rather than an innocent party. Clark, according to his own evidence, thought he was furthering the interest of his employers. He supposed he was in the line of his duty. The court charged', at the request -of defendant, that, if Clark was acting maliciously, or under the influence of temporary mental aberration, the plaintiff cannot recover.

. The defendant claims that the decision of this court in Burke v. This Defendant, 69 Hun, 21; 52 St. Bep. 813-, is in the way of plaintiff’s recovery. That case related to the same disaster, and was an action brought by the administratrix of the engineer of the passenger train. The engineer was in the employ of defendant, and so a coemploye with Clark. The questions considered were whether, in several different aspects, there was negligence on the part of the corporation itself. The question whether .the defendant was liable for the negligence of Clark was not considered, and the ruling there does not therefore affect this case.

It is further claimed by the defendant that the verdict is excessive. By the collision the plaintiff was rendered unconscious, and so remained for several days. ‘ He was taken to a hospital, and there remained till the 20th December, following, and then was taken to his home, at Great Bend. He received several cuts and bruises on his right leg, and his back was bruised. It was, as he testifies, five or six months before his wounds healed over. He has been in pain.ever since, could hot walk for a year without crutches, and after that walked with a cane. He commenced to work some in February, 1892, and prior to the trial, in October, 1893, had worked about eight months. He was not able to work full time; did not average fifteen days a month. He .says:

“ When I was injured I got $1.90 a day as wages, and had been for about nine years. I am not very able to work now, because I am injured. I am crippled, and my constitution can’t stand the work. To stand on my leg affects it so I can’t stand on it, and stand steady on it. I can’t bend it. My back pains me steady all the while ; has since I got hurt. I have never been free from pain there since I got hurt. It seems as though it is a kind of boring right through there; steady pain on me all the while. It beats in the small of my back. * * * Since I got hurt, I never had an appetite, and don’t care if I never have anything to eat; always had a good appetite before. I have to get up in the night, and can’t sleep, several times, because of pain. * * * I am affected with pains so I can’t sleep. Have to get out of bed and walk the floor. for to get rest; have to several times. Aside from pain, I can’t sleep with pain. As to the feeling of my limbs and sensation of my back, it feels as though there was pain there all the while; feels numb. Heat and cold does not make much change on my back, because I always keep it pretty warm. My leg is cold. No matter how warm the weather is, the leg is ■always cold. That is so ever since I got hurt. * * * The changes in the atmosphere affect me in a way that, when the •change of the weather is, I have more pain than I have at other times. Consequently, can’t sleep or can’t rest or can’t work, in fact when the weather is changeable. * * * The injuries that were of a serious character where the injuries to my leg and back. When I first became conscious, I don’t remember the condition of the leg, because they had it all tied up. I did not see it at that time. When I saw the leg, it was all raw, like a piece of beef steak. It was all cut to pieces, and torn to pieces; burned up. I don’t think it was smooth all the way down. There were •cuts or=holes in it, located from below the knee up to the small ■of the back, upon the right side of the body, all the way up ; running from below the knee up to the calf of the leg. The injuries upon my back were not on the right side. They were in the middle of the back. It was a bruise in the small of the back. * * * Before I received these injuries, physically I was strong and healthy ; never was sick to my knowledge. I could work all right, right along, all the time doing a day’s work. I had no trouble with my limbs, no bruises of any other kind, before this accident.”

There was medical evidence to the effect that the right leg was smaller than the left one, and was much cooler; that it was weaker than the other, and would become more so, and the power of the muscle to contract would largely disappear; that he could not fully use the limb on account of pain, and it would remain so; that he could not straighten the leg without pain, and this difficulty was likely to remain; that there was a tenderness at the place of the injury in the back that was liable to be permanent or worse; that, when the spine is affected, it is a serious matter, and a complete restoration of the function of the member is impossible. There was other evidence which if relied on, would indicate that the injuries were less grave, but the subject was for the jury to pass upon. In one view of the case, the jury might say that not only were the injuries and the pain and suffering therefrom very serious, but that also the effect was likely to be permanent, so that the plaintiff’s ability for labor would be very materially affected, if not substantially destroyed. We are of the opinion that sufficient grounds for us to interfere do not appear.

The foregoing considerations lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

All concur.


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    Henry J. Fischer et al., Resp’ts, v. William H. Hussey et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 5, 1895.)

    Mechanic’s lien—Cancellation.
    An order directing the cancellation of a mechanic’s lien, without requiring a deposit to secure it, is void, though the claimant, served with notice of motion, did not appear.

      Appeal from an order, denying a motion to. vacate and set aside an order cancelling a mechanic’s lien.

      Carlisle Norwood, for app’lts; Reginald H. Arnold, for resp’t Gunn.
   Beekman, J.

This action was brought for the foreclosure of a mechanic’s lien filed by the plaintiffs against certain property of which the defendant Martha Gunn claims to be the owner. The defendants Hussey were made parties defendant as subsequent lienors. The plaintiffs’ lien was filed on June 6,1894, at 12 o’clock and 14 minutes in the afternoon, and was for the sum of $1,560.82. The defendants’ lien was for the sum of $1,400, and was filed on June 7,1894, at 9 o’clock and 35 minutes in the forenoon. The defendant Martha Gunn acquired the premises by deed from her husband dated on the 6th day of June, 1894, and recorded on the following day, but not until after the lien of the defendants Hussey had been filed. She and her husband answered the com-' plaint, putting in issue the allegations in respect to the work done and the amount due on the contract, the effect of which, if maintained by proof, would be to defeat the plaintiffs’ claim. The defen-' dantsHussey, although served with the summons and complaint, did not appear, and were therefore in complete default on August 17, 1894, when an order was made, on motion of the attorney for Martha Gunn, on the pleadings and affidavits, requiring all of the defendants to show cause, on a day fixed therein, why an order should not be made by the court “ fixing and determining the amount of money to be deposited herein, and canceling and discharging of record the various mechanics’ liens referred to in said affidavits, and in the complaint herein, and why the lis pendens filed in this action should not also be canceled and discharged of record, and why said defendant should not have such other or further relief in the premises as to the court may seem just and equitable.” The affidavits referred to were made by the attorney for Martha Gunn and by YYilliam Gunn, respectively. The one made by the attorney sets forth the status of the action, and the reason for the application is stated to be “ that the defendant Martha Gunn desires an order of this court fixing the amount which shall be deposited by her in satisfaction of the mechanics’ liens heretofore filed herein, and which are involved in this action.” The affidavit of William Gunn stated the various liens in their order of' priority, and alleges that the only ones which are claimed to be-liens upon said premises in the hands of the defendant Martha Gunn are those of the plaintiffs and the defendants Hussey. It. may be here stated that there were several other liens upon the-premises, subordinate to the two above mentioned, but which are-not the subject of discussion. The defendants Hussey, not having appeared in the action, were personally served with the motion papers. On the return day none of the lienors appeared except the plaintiffs, who made no opposition beyond claiming that the defendant should deposit at least $1,930.59 against the cancellation of plaintiffs' lien and the lis pendens. Upon these papers an order was made and entered at special term on August 24, 1894, directing the defendant to deposit with the clerk of the city and county of New York the sum of $1,800, “to be held and retained by said •clerk to pay any judgment of this court which may be obtained by the plaintiffs in this action against the property mentioned and •described in the complaint in this action.” The balance if any, was directed to be held by said clerk for and on account of said defendant Martha Gunn, subject to the further order of this court. It was further ordered that upon such deposit being so made the clerk should cancel and discharge each and every of the mechanics’ liens mentioned in the moving papers, which were also specifically enumerated in the order, and which included the lien of the defendant Hussey. The order also provided that upon such deposit being made the Us pendens should “cease to be a lien or incumbrance upon or of any force or effect whatever against the premises therein described,” and that any right, interest, or claim of any of said defendants who had filed mechanics’ liens against said premises should be transferred from said premises to said fund. The total amount of all the liens affected by this order was $3,967.82.

The money was deposited as directed, and the liens in question were canceled by the county clerk. Thus, upon a deposit of not more than enough to cover the plaintiff's lien, and which was devoted to the payment of any judgment they might recover, the lien of the defendants Hussey, which was conceded to have priority over the deed to Martha Gunn, was canceled, as well as all others subsequently filed, without any equivalent deposit. About a month afterwards an application was made by the defendants Hussey to have their default in appearing and pleading opened, which was granted. They appeared and answered, and cross answers to their plea were interposed by the defendants Martha Gunn and William Gunn. Thereafter, and on the 15th day of October, 1894, an order was duly entered discontinuing the action as to all of the other lienors whose liens had been so canceled. On November 9,1894, an order was made, on motion of the defendants Hussey, requiring the plaintiffs and the deféndantg Gunn to show cause, at a time fixed therein, why an order should be made amending the order of August 24, 1894, by striking out the direction for the cancellation of the Hussey lien, and vacating and setting aside said order as to them, and why a supplemental summons should not issue bringing in a purchaser of a portion of the property affected by the lien, who became such seven days after the order of cancellation was made, and others deemed to be proper parties, in view of the changed conditions following upon the order last named. This order to show cause was made upon the pleadings and an affidavit of Frederick Hussey, in which he states that he had refrained from appearing on the motion to cancel, relying upon representations made to him by William Gunn that his claim would be paid, and that it was not until he had consulted with his present attorney that he was advised and discovered that the order of cancellation did not protect his interests and was void. On the return day an answering affidavit of William Gunn was read, which questioned the assertion as to the representations above mentioned, and also, at considerable length, challenged the validity of the indebtedness-upon which the Hussey lien rested. Other affidavits were presented, mainly for the purpose of showing loches on the part of the Hussey defendants. The papers show that the latter had been advised of the effect of the order of August 24th upon their lien when their application for leave to appear and answer was granted,, a month later. Their motion to vacate the order of cancellation, which was heard before the judge who had made it, was denied, on the ground that the Husseys having .failed to appear and answer, and having also made default in appearingon the motion, had no standing in the action, and that the court, therefore, had power and jurisdiction to relieve the premises from the operation of the lien filed by them without requiring a deposit of money for their benefit; also on the ground of loches on their part in failing-to move earlier for relief. From the order entered denying the motion an appeal is now taken.

We do not think the court below had the power to make the order ünder which it was assumed to cancel the lien in question. The statute which authorizes the filing of a mechanic’s lien also-provides for the method of its enforcement by action, and specifies the conditions under which it may be discharged. Chapter 342, Laws 1885, and amendments. Section 24 states six separate and distinct w’ays in which such a lien may be discharged.' The only one material to the present inquiry is contained under subdivision 3 of the section:

“ After the commencement of the action, by the deposit with the clerk of the county of such sum of money as in the judgment of the court, after due notice to all claimants or parties to the action, will be sufficient to pay any judgment which may be recovered against the property. In case the deposit of money is made with the county clerk, as provided in subdivisions 2 and $ of this section, the same shall be repaid by said clerk to the party making such deposit, or his assigns upon the lien or liens being-discharged by the claimants who have.filed a notice or notices of lien or liens.”

The power of the court to authorize.the discharge of such a lien is limited to the cases specified in the statute, and in all cases the-proceeding pointed out which conditions the exercise of the power must be strictly followed. Fettrich v. Totten, 2 Abb. Pr. (N. S.) 264; Dowdney v. McCullom, 59 N. Y. 367. In the latter case the court, referring to the lien law of 1863, says (page 372): “The proceeding is entirely statutory, and the court can exercise no power except such as is conferred by statute.” Unless, then, the court below kept within the provisions of subdivision 3 above quoted, the order directing the discharge of the lien in question was void. We think there was such a radical departure from the requirements of the statute in making the order that it cannot be supported. The power of the court to discharge is made dependent upon the deposit of money with the county clerk, which thus takes the place of the land, and becomes subject to the lien. The discharge of the lien was not intended to destroy it, but to lift it from the real estate, and transfer it to something else,-—a deposit of money which is intended to be a security reasonably sufficient for the purpose. The object is to afford the person against whom the lien is filed an opportunity of disposing of his property which the continued charge of the .lien thereon, during perhaps a protracted litigation, would prevent. The provision is a wholesome one, but could be a just one only when associated, as it is, with the counter requirement that security approximately equivalent to that which is taken away should be given. Hence we find the legislature authorizing the discharge in cases similar to the one at bar upon a deposit which “ will be sufficient to pay any judgment which may be recovered against the property ” by the lienor. In view of the plain purpose of the provision, the judgment to be exercised by the court, in determining the amount of the deposit, is one which must assume and proceed upon the correctness of the lienor’s claim, and is confined to an estimate of the amount which, in case the claim is established by judgment, will fairly provide for its payment. The validity of the claim upon which the lien rests cannot be litigated upon such a motion. That can only be done upon the trial of the action. To hold the contrary would obviously defeat the very object which the provision was intended to secure; that is, the immediate relief of the property from the consequences of a protracted litigation, which would thus ensue upon the motion instead of upon the regular trial of the action. If the court may, in ascertaining the amount of deposit, inquire into the merits of the lien, it may determine that there is no claim which will support the lien; that judgment will, therefore, be ultimately rendered against the lienor, and that, consequently, no sum of money should be deposited, as no judgment could be recovered by him against the property,—a conclusion quite contrary to the plain mandate of the statute. We are therefore of the opinion that the court below, in ordering the cancellation of the lien of the defendants Hussey without any deposit, acted in excess of its power, and "that the order was void.

The fact that these defendants, although served with notice of the same, did not appear on the motion, does not lend any support to the order, Apart from the question whether such a default could, under any circumstances, estop a" party from attacking a void order, these defendants had no notice from the papers that any such thing as the cancellation of their lien without a deposit was contemplated, nor were they bound to assume that any such result was among the possible outcomes of such a motion. They were, on the contrary, entitled to expect that the demand of the statute would bé complied with, and a deposit made which would secure to them the benefit of the most favorable judgment which could be rendered in their behalf upon a trial of the action. The fact that they were then in default in pleading made no difference. They might subsequently come in, as they actually did, under leave of the court, and participate actively in the litigation. In short, for any of the purposes connected with its discharge under the provisions of the statute in question, the lien is to be considered good until final judgment is pronounced against it.

We do not think there is any question of loches involved in the case, or, if there were, that the respondent Gunn, who procured such an order, is entitle to claim any benefit therefrom. The intervention of the rights of third parties, claimed to be a reason for denying the relief sought, did not result from the alleged loches of the appellants, as the conveyance made of a portion of the property took place only one week after the order complained of was entered. Further, in this connection, it was the plain duty of the purchaser to examine the order under which the liens were canceled. Had she done so, she would have discovered the defect of authority, and that in contemplation of law neither the lien nor the lis pendens had been discharged. What we have said in reference to the lien applies equally to the portion of the order under which it was attempted to cancel the lis pendens. The lien law provides for the filing of this notice, and gives to every lienor, whether plaintiff or defendant, an equal benefit from it. Section 6, c. 342, Laws 1885. The statute does not authorize the court to cancel it, nor does section 1674 of the Code of Civil Procedure, assuming its application to a lis pendens -filed under the mechanic’s lien law, confer any such authority in such case as this. Such a notice can only be canceled in the cases in which the statute authorizes it Beman v. Todd, 124 N. Y. 114-116 ; 35 St. Rep. 214. It follows from what we have said that the motion to vacate the portions of the order objected to should have been granted. We do not consider that those who acquired interests in the property after the oi’der complained of was made are necessary parties, as the lien and lis pendens were really unaffected by the unauthorized attempt to cancel them; but as it is certainly just that they should, under the circumstances, have an opportunity to litigate the lien of the defendants Hussey, we feel disposed, in the interests of justice, to allow them to be brought in, although they are not before the -court asking it. The order appealed from should be reversed, and the motion granted, with costs of the appeal.

All concur.


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    Herman Russ et al., Resp’ts, v. Eliza Stratton et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    1. Deed—Delivery.
    The recording of a deed does not prove a delivery where the grantee had no knowledge thereof.
    2. Same—Subsequence acceptance.
    A subsequence acceptance by the grantee will not relate back to the time of recording, so as to affect the title of a purchaser at-a sale under the foreclosure of a mortgage given by a former owner prior to such acceptance.
    S. Evidence—Action to redeem.
    In an action to redeem from a mortgage, the defendant may show that, at the time of the foreclosure sale, the plaintiff who was not served with summons in such action, had not accepted the deed under which he claims title.
    Appeal from a judgment in favor of plaintiffs.

      Gary & Whitridge, Butler, Stillman & Hubbard, and John E. Parsons, for app'lts; D. M. Porter, for resp’ts.
   Sedgwick, C. J.

This action is, briefly stated, to redeem certain lands, described in the complaint, from a mortgage. The mortgage has been foreclosed, and the defendants have succeeded to the rights of the purchaser at the sale in' foreclosure. The complaint claims that the plaintiffs had, at the time of foreclosure, each an interest in the premises mortgaged, and were not served with process in the action, and did not appear therein. It was necessary for the plaintiffs to show on the trial below that they had title to the land, in order to show that they had a right to redeem. This action does not involve a claim to an equitable right. A legal title and interest is alone claimed.

The plaintiff Herman Russ claims an estate in the land by virtue of a conveyance máde-22d April, 1876, by Frederick Bruns and wife, to J. W., W. and Addie and George Lyons and Herman Russ, etc. This deed was recorded 25th May, 1876. The defendants claim that this deed was not delivered to Herman Russ until after the purchaser at the foreclosure sale had taken title. By the evidence it appears that Herman Russ knew nothing of the deed, or of its recording, at or before the time of its recording. The effort to show the contrary was not successful. A Mrs. Weidersum, whose relation to the title or its owners is not disclosed, at a time that is not proved, held up a piece of paper to Herman Russ, who was a street playmate of her son, and of the age of eleven years, and said: “ This is for you. When you come to be of age, you will have something.” He did not take the paper. She kept it. There was no presumption, no proof, that the paper was the deed of Bruns to Russ and others, and which was afterwards recorded. Her words did not describe the effect of the deed. A deed would give the title to the infant, with right to him to avoid it on coming of age., Russ testified that he did not "know that the piece of paper was a deed. This transaction,’ therefore, did not show any delivery of the deed to Russ. The argument for the plaintiff claims that the recording of the deed shows a delivery. This is but by a presumption, and may be rebutted. Gilbert v. North American Fire Insurance Co., 23 Wend. 46; Jackson v. Perkins, 2 id. 317; and Gifford v. Corrigan, 105 N. Y. 223; 7 St. Rep. 7. There is no evidence, I believe,—at least, no incontrovertible evidence,—that Russ ever knew of the existence or the recording of this deed until a little time before the. present suit was begun. Therefore, until that time, he, could not have in fact made an acceptance, which is a part of a delivery. In the meantime the right of the purchaser in the foreclosure had accrued. Nor would the acceptance by Russ have affected, by relation to the time of recording, the valid acts or right of the purchaser, to whom the defeudants succeed in several days. Such acts and right are not invalidaEed by relation. Russ was made a defendant in the foreclosure action, but was not served with the summons, although there was an affidavit of service. The purchaser could have the advantage of the fact as to title, whether or not he knew it. In iact, Russ had no interest in the land, as' there had been no acceptance of the deed by him. Upon that condition of the facts, the purchaser bought, and paid a valuable consideration. Of a title to be gained by relatieu. the judge delivering the opinion in Mitchell v. Bartlett, 51 N. Y. 453, says: “I dissent from this doctrine and deny that a legal title can become vested under a deed before its delivery, under any circumstances.” The plaintiff Russ, then, cannot disturb the detendant’s title, and has no claim of a right to redeem. If there be any other who has a right to redeem the estate claimed by Russ,—which is doubtful under the circumstances,— he should have been made a party.

“As a party entitled to a part only of the mortgage money cannot foreclose the mortgage without bringing the other parties interested in the mortgage money before the court, so neither can a motgagor redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties to the suit.” “The owner óf two estates mortgaged for same sum cannot redeem his part separately.” 1 Dan. Chi. Prac. (4th Am. Ed. 2!2. _ _ .

_ _ This concerns the equitable causes of action, and not the parties. The two other plaintiffs have no right to redeem without bringing in all others that have a right to redeem. I therefore think there should bé a new trial, and not a dismissal of the complaint. On that new trial there may be more evidence as to the delivery and acceptance of the deed.

It is supposed that delivery to Russ was shown by a delivery of another deed, made by the co-grantees of Russ to two plaintiffs other than Russ, which was delivered to and accepted by them. These facts did not show delivery to Russ., The grantees in neither deed were joint tenants, and were tenants in common or several owners. No act of theirs could bind another tenant in common', if there' were' one. Other plaintiffs, Minnie Orth and Emelie Orth, claimed title under a deed made 1st day of September, 1876, between J. W. and W. and Addie and George ¡Lyons and themselves, Emelie Orth and Minnie Orth. The deed that it is claimed gave to these grantors title was the deed to Russ and others, viz. Bruns to J. W.W. and Addie and George Lyons. In case of identity of name, the presumption arises from the improbability that different persons have the same name, and therefore the onus is cast upon the party denying the identity to show that it is a different person ; but an initial letter may denote any one of a great number of names, and, unaided by proof of any other fact, designates the person with but little more certainty than as though the name abbreviated by the initial was wholly omitted. People v. Smith, 45 N. Y. 779. It is therefore impossible tQ identify any one, unless perhaps George Lyons, by the initials or the single word “Addie.” A person is presumptively possessed of a Christian name and a surname. Thelast connective “and” in J. W. and W. and Addie and George Lyons separates the preceding initials and “Addie,” and so does the connective immediately before “Addie.” It is-not to the purpose that the deed has been signed by four persons, who give the names “J. W. Lyons,” “W. Lyons,” “Addie ¡Lyons,” “George Lyons.” On the positions that have been taken here, they, excepting George Lyons, do not appear by the deed to be described in it or identified by it. The deed to the Orths was not operative to convey any estate, except, perhaps, such as George Lyons had power to convey. What the estate of George Lyons was, was not discerned at the bar. Without such an argument, we will not decide it now. If this construction of the deed to the Orths be correct, it then appears that there were parties not brought into this action for redemption whose presence was necessary. The judgment is reversed, and a new trial ordered, with costs to defendants to abide the event.