text:
    The Panama Railway Company, Resp’t, v. Richard L. Johnson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Embezzlement—Evidence—Burden of proof.
    In an action for embezzlement or misapplication of money by an agent there is no such thing'as a shifting of the burden of proof. The plaintiff must establish his whole case, and that includes the establishment to the satisfaction of the jury of the embezzlement or misapplication of the money as well as its receipt.
    2. Same—Charge.
    In such an action the receipt of the money was not controverted, but defendant denied its embezzlement or misappropriation. The court charged that it having been shown that defendant had received the money it was incumbent on the defendant to show by a preponderance of evidence that he had paid the money over to the benefit of the company. Reid, error.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.

      H. C. Wilson, for app’lt; T. S. Moore, for resp’t
   Van Brunt, P. J.

This action was brought to recover the sum of $5,200, alleged to have been received by the defendant as agent of the plaintiff and to have been by him embezzled and fraudulently misapplied.

Upon the trial evidence was introduced tending to show the receipt by the defendant of the sums of money referred to in the complaint. The defendant denied the embezzlement and misapplication and offered proof in support of such denial. The jury rendered a verdict showing that they found in favor of the defendant upon one item charged against him and in favor of the plaintiff upon two other items. And from the judgment thereupon entered and from the order denying motion for new trial this appeal is taken.

It seems to have been assumed upon the trial that the complaint was sufficient to justify proof under § 549 of the Code that the money received by the defendant had been embezzled and fraudulently misapplied while he was acting in a fiduciary capacity. Without in any way assenting to this proposition, we will consider some of the exceptions which were raised during the progress of the trial assuming the complaint to have been sufficient to charge the defendant as above stated.

There was no question raised upon the trial but that the defendant had received the sums of money charged in the complaint; and the question submitted to the jury was whether he had embezzled or fraudulently misapplied the same.

In order for the plaintiff to succeed it was necessary that it should establish to the satisfaction of the jury not only the receipt of the money, but its embezzlement or fraudulent misapplication by the defendant, and the burden of proof rested during the whole progress of the trial upon the plaintiff to establish these two propositions.

If this had been an action for money had and received to the use of the plaintiff and it had been tried upon that theory, then all that the plaintiff would have done would be to show that the defendant had received the money, and the burden would then have been upon the defendant to show that he either paid the money to the plaintiff or applied the same to its use.

W e think the distinction between the two kinds of action was -entirely lost sight of during the progress of the trial and that the learned court erred when it charged the jury that, it having been shown that the defendant had received the two items for which they found a verdict in favor of the plaintiff, it was incumbent on the defendant to show by a preponderance of evidence that he had paid the money over to the benefit of the company.

In order to charge an agent with embezzlement it is necessary not only to show that he has received the money, but also that he has refused to pay the same upon demand or that he has misapplied the same; and the,burden of establishing these propositions rests upon the plaintiff, notwithstanding the admission of the defendant that he received the moneys claimed to have been embezzled. In other words, in an action for embezzlement or misapplication of money by an agent there is no such thing as a shifting -of the burden of proof. The plaintiff must establish his whole •case, and that case includes the establishment to the satisfaction •of the jury of the embezzlement or misapplication of the money as well as its receipt.

An entirely different rule prevails in an action for money had ■and received.

There the same rule applies as in the case of every debtor, namely, that he is bound to show payment if he claims such a defense; an entirely different condition of circumstances from that which exists in an action like the present was assumed to be, namely, an action to recover for money embezzled by an agent acting in a fiduciary capacity.

The jury were erroneously instructed upon this point. It was an error which was of vital importance to the defendant. The importance of this question is shown by the verdict of the jury, where they find in favor of the defendant upon the third item, as to which the court charged that the burden of proof was all the time upon the plaintiff.

There was another question raised during the progress of the trial, and that was, the right of the defendant to take exceptions when the jury brought in a sealed verdict, they having been allowed to separate.

Such a right seems to be recognized by a provision of the Code which is assumed to he a new provision enacted for the first time upon the adoption of the present Code.

It will be seen that that provision has existed ever since -the adoption of the Eevised Statutes, and in view of its terms we do-not see how a party can be prevented from taking an exception expressly authorized.'

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

Daniels and Brady, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J. Daniels, J.

license: Public Domain

text:
    Charles Gilpin, Jr., Resp’t, v. John Daly, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Depositions—Commission—Interrogatories.
    The mere fact of allowing a commission to issue does not authorize the-propounding of interrogatories which are clearly immaterial to any possible issue which can arise during the progress of the trial.
    2. Same.
    It is no objection to an order disallowing interrogatories that the question of their relevancy or materialty may be reserved until the trial, because although such is the fact, clearly improper interrogatories should never be allowed to be propounded.
    3. Same.
    So far as interrogatories call for the witness’ information and belief they are clearly objectionable an'd incompetent.
    4. Witness—Impeachment.
    The only method by which a witness can be impeached is by general testimony as to his character or by direet evidence showing his testimony to be untrue. Proof of the fact that he has been guilty of crimes which ought to have been sufficient to make him an inmate of a state prison cannot be gone into for the purpose of testing the credibility of a witness.
    Appeal from order disallowing certain interrogatories.

      John Graham, for app’lt; J. L. Cadwalader, for resp’t.
   Van Brunt, P. J.

This action is brought by the plaintiff, as'assignee of the Glamorgan Iron Company, an incorporation organized and having its place of business in the state of Pennsylvania,, to recover money alleged to have been embezzled by one Charles-B. Wigton, the treasurer of the company, and lost by him at the-gambling houses or rooms of the defendants at play. The defendant, in his answer, denied each and every allegation of the complaint and set up, as affirmative defenses, that no equitable relief was necessary to the plaintiff, and that the action was not commenced and is not carried on for the benefit of the Glamorgan Iron Co., or for the plaintiff as its assignee, but for the benefit of Charles B. Wigton and parties who have espoused his cause, who became and are interested in him to screen him from the consequences of various crimes, forgeries or the like, under some agreement or compromise with the persons who have suffered from these crimes, and so avert from him, criminal punishment. The defendant, Daly, made a motion for a commission to' take the testimony of various persons resident in the state of Pennsylvania, which motion was granted. Thereupon, direct interrogatories were proposed,. one set to be administered to R B. Wigton, the father of the said Charles B. Wigton, and another set to be administered to other witnesses. To the greater part of these interrogatories upon their settlement the plaintiffs objected, and they were excluded; and from the- order excluding the interrogatories this appeal is taken.

It is urged that the action of the justice in disallowing the interrogatories is in conflict with the order of the justice allowing the commission. This objection is not well taken. There are certain subjects upon which these witnesses may be interrogated, and there are certain interrogatories which have been allowed. The mere fact of allowing a commission to issue does not authorize the propounding of interrogatories which are clearly immaterial to any possible issue which can arise during the progress of the trial.

Heither is it any objection to the order made that the question as to the relevancy or materiality of the testimony might be reserved until the trial, because, although such is the fact, clearly improper interrogatories should never be allowed to be propounded.

It is urged upon the part of the appellant that as Ohas. B. Wig-ton will be the only witness against the defendants, they have a right to impeach him and to show “ from the whole of his making up and getting up he is not to be believed under oath; that he is vicious in himself, so by nature, and that he is made more vicious by these stockholders ” (referring to the witnesses who are to be examined).

It is clear that if Ohas. B. Wigton is to be impeached as a witness by the defendants, it cannot be by evidence of this character. The only method by which a witness can be impeached is by general testimony as to his character or by direct evidence showing his testimony to be untrue. Proof of the fact that he has been guilty of crimes which ought to have been sufficient to make him an inmate of a state prison cannot be gone into for the purpose of testing the credibility of a witness. It of course would be competent to show in impeachment of Wigton’s testimony a plan or agreement by which his crimes were to be held in terrorem over his head, so that he might be compelled to testify in a certain manner, and that it had been arranged that in case he so testified he should not be punished for his misdeeds. Such a combination would be a conspiracy against the defendant which he undoubtedly would have a right to prove. But the difficulty with the interrogatories which have been propounded is that few of them tend to support any such proposition. They seem mainly to be directed to the establishment of the utter unreliability of Chas. B. Wigton as a witness because of specific offenses committed by him. The interrogatories tending to show such a conspiracy have not been objected to and consequently are allowed.

There is one interrogatory, however, a portion of which does not seem to fall within any of these categories, and which has been excluded, and which we think the defendant had a right to put; and that is the thirteenth interrogatory, in regard to the authority of Charles B. Wigton as treasurer of the company. This was objected to as calling for the conclusion of the witness as mat-i ter of law, and as calling for hearsay evidence and as incompetent.

So far as it asked the witness for his knowledge of the subjects embraced within the interrogatory, it was competent The interrogatory ends with the words: “ Speak from your knowledge and information.” So far as it called for information, it was clearly incompetent. The same interrogatory was propounded to the other witnesses, and is the seventh interrogatory. To this the same remarks apply.

It is to be observed that most of the interrogatories call upon the witness to speak from his knowledge, information and belief, which is clearly objectionable, and ” renders their exclusion absolutely necessary.

Upon the whole, we see no reason for disturbing the order appealed from, except as to the thirteenth interrogatory, administered to Wigton, and the seventh, administered to the other witness, in case the words" and information” are stricken therefrom, in which, case those interrogatories should be allowed.

The order as so modified should be affirmed, without costs.

Brady, J., concurs.

Daniels, J.

I concur with this qualification, that if Charles B. Wigton shall be examined as a witness upon the trial, or by commission, the defendant’s counsel will also be at liberty to impeach or discredit him by his own cross-examination. And for that object may interrogate him as to any facts of misconduct on his part which would be attended, wholly or partially, with that result.


author: Van Brunt, P. J.

text:
    George E. Beakes et al., Resp’ts, v. Luiz A. Da Cunha et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Guaranty—Consideration.
    The delivery of merchandise upon the faith of a guaranty of payment is a sufficient consideration for the guaranty.
    2. Same.
    One K., the son-in-law of defendants’ testator, had been dealing with plaintiffs, who did business under the firm name of George E. Beakes. • Upon security being required the deceased went with K. to see one of the plaintiffs, and executed a guaranty whereby he became responsible to “ George E. Beakes, Esq.,” for all milk he might sell to K. Held, that in view of all the facts, it was evident that the guarantor intended to become liable for milk sold by the plaintiffs; that the guaranty w'as available to the firm, and that the addition of the word “ Esq.” at the end of the name did not deprive the guaranty, of such operation.
    3. Same—Notice—Evidence. .
    The guaranty required notice to be sent to the guarantor monthly if payment for the previous month’s goods had not been made. Held, that notice by mail was as effectual as a personal notice, and that parol proof of an understanding that the notices might be sent by mail was not" inadmissible as tending to alter the contract.
    Appeal from order confirming report of referee and from judgment entered thereon.

      E. H. Benn, for app’Jts; R. L. Swezey, for resp’ts.
   Van Brunt, P. J.

The reference in question was of a claim against the estate which was disputed and rejected by the executors, and then referred under the statute providing for a reference of such claims.

The evidence showed that the deceased, Charles Gedney, in November, 1886, executed a guaranty by which he agreed to become responsible to George E. Beakes for all milk he might send to Chester L. Ketchum on his order, requiring notice to be given on the 20th of each month if payment for the previous month’s milk had not been made up to that time. The plaintiffs, who were copartners doing business at Sidney Centre, Delaware county, New York, under the name of George E. Beakes, had been dealing with Ketchum some time prior to the date of the guaranty, and continued to deliver him milk after that time. Ketchum paid for all that he got until May, 1887, when he failed to pay in full, and from that time until December 31, 1887, he failed to pay in full, upon which date there was due from Ketchum $2,447.41.

Charles Gedney, the guarantor, died on the 30th of December, .and thereafter, on the 9 th of February, 1888, George E. Beakes presented the claim to the executors, which was refused. In the submission or agreement to refer it is stated that the claim is by George E. and Charles H. C. Beakes, as copartners, and by the evidence taken before the referee it was shown that the milk was all sold by them as such copartners to Ketchum.

The referee having reported in favor of the claim various obj ections are raised upon this appeal.

The first is, that there was no consideration for the guaranty. It is clear that this objection is not well taken, because tire delivery of the merchandise upon the faith of the guaranty formed a sufficient consideration.

The next objection raised is that the guaranty was to one man and is not available to anybody else or to a firm of which he was a member, and it is claimed that the case of Barns v. Barrow, 61 N. Y., 39, is decisive upon this question.- In that case it appeared that Barns, one member of a firm, agreed to furnish goods to a factor, and the defendant, Barrow, guaranteed that the factor should faithfully account for the proceeds of the sales. The goods were furnished to the factor by a firm of which Barns was a member, and the factor failed to account. The court held that the guarantor was not liable because the guaranty was not to the firm, and the goods were not furnished by the individual.

In that case it is distinctly admitted that where there is any evidence showing that the guaranty was taken for the benefit of a firm, although addressed to one. of its members, the firm can recover upon it, and that this fact may be shown by parol evidence.

Applying this rule to the evidence in the case at bar, we find it established that Ketchum, a son-in-law of Gedney, had been receiving milk from the plaintiffs’ creamery, at Sidney Centre, which, as has been stated, was conducted by the plaintiffs under the name of George E. Beakes; that Ketchum solicited his father-, in-law to becomé his surety for goods to be supplied him from such creamery; that Ketchum knowing that one of the plaintiffs, Charles H. C. Beakes, was engaged in business in New York, took his father-in-law down to see him, and there Mr. Gedney and Mr. Beakes settled upon the terms of the agreement; whereupon, the latter sat down and wrote out the agreement addressed to George E. Beakes, that being the name under which the business was conducted ; and thereupon Gedney signed the paper and left it with Charles H. 0. Beakes.

It is clear from this evidence that Gedney understood that this milk was to be furnished from the creamery at Sidney Centre, and the guaranty was written out in the name of the individual in • whose name that business was being conducted, simply because it was being conducted in that name.

The guaranty was clearly intended to be given to secure payment for milk so delivered; a clear intention being established upon the part of the guarantor to be liable to George E. Beakes (whatever that name might include) for milk delivered in this particular business. These facts clearly distinguish the case from that of^ Barns v. Barrow, above cited, where there was nothing to indicate that the guarantor intended to guarantee anything connected with the firm business, but that it was an individual contract disconnected from any firm business. In the case at bar it is evident that the intention was to guarantee payment for milk delivered from this creamery. It was addressed to the firm name under which the creamery was conducted; and the mere addition of the word “ Esq.” at the end of the name cannot deprive the guaranty of the essential features which the circumstances show it was intended by the parties to possess.

It is further urged that the conditions of the guaranty were not complied with, in that notice on the 20th of each month of failure to pay was not given.

There was evidence tending to show that notices were mailed on the 20th of each month to Gedney, and received on the 22nd or 23rd. But it is urged that such a method was not mentioned in the contract, and therefore a personal notice was required. We do not understand such to be the rule in a contract of this kind. A notice by mail is as effectual Us a personal notice. The notices appear to have been sent and received; and the interpretation placed by the parties upon the contract seems to coincide with the proof offered that it was the understanding that these notices might be given by mail.

It is urged that this is parol proof, and that nothing can be supplied or added' to a contract by parol in a case like this where, by the statute of frauds, the contract is required to be in writing.

• We think, however, that this objection is not well takep. It was no alteration of the contract which was established by show-, ing that the notices should be sent by mail. It was merely evidence as to how the parties understood the terms of the contract were to be complied with. It could not for a moment be insisted that if an address for the delivery of the notices had been given by the guarantor that the delivery of such notice at such address would, not be sufficient, and this would be just as much adding to the guaranty as an understanding that the notices might be mailed to a specific address, as was established by the evidence.

We think, under the circumstances, that the referee was right, and the order should be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Barrett, J.

text:
    Lucy V. Owens, Resp’t, v. R. Hudnut’s Pharmacy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Pleading.
    There is.no such practice as the striking out of an answer, or part of an answer, as frivolous. If the entire pleading is frivolous, the party aggrieved may move for judgment thereon, and such is the only proper practice.
    3. Same—Denial.
    A denial of “each and every allegation of the complaint, not herein specifically admitted or denied,” is correct, even in form, and cannot be stricken out as frivolous, irrelevant or redundant.
    Appeal from an order of the special term striking out, as frivolous, irrelevant and redundant, that portion of the defendant’s answer which “ denies each and every allegation in the complaint not herein specifically admitted or denied.”

      Jacob F. Miller, for app’lt; A. J. Moore, for resp’t.
   Barrett, J.

The rule is now well settled that an answer denying each and every allegation in the complaint, not herein specifically admitted or denied, is authorized in form and should not be stricken out as frivolous. Calhoun v. Hallen, 25 Hun, 155. Indeed, there is no such practice as the striking out of an answer, or part of an answer, as frivolous. If the entire pleading is frivolous, the party aggrieved may move for judgment thereupon, Code, § 537, and such is the only proper practice. Here, however, the denial was stricken out as irrelevant and redundant as well as frivolous. It was clearly relevant even if the form were unauthorized, and it could not, therefore, be stricken out as irrelevant, still less as redundant. An unauthorized form of denial may sometimes be equivalent to an admission, but even then it cannot be stricken out as frivolous, irrelevant or redundant. But the present denial was correct, even in form, within the rules laid down in Allis v. Leonard, 46 N. Y., 688; more fully, 22 Alb. Law Jour., 28; Clark v. Dillon, 97 N. Y., 377; Griffin v. Long Island R. R. Co., 101 id., 348; 1 N. Y. State Rep., 56. What was previously admitted was clear enough, so was what was ignored; and hence, as was said in Griffin v. Long Island R. R. Co., .supra, “there was no doubt or confusion as to the application of this general denial.”

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

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


text:
    Annie E. Smith, App’lt, v. Fletcher W. Camp, Adm’r, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Limitation—Acknowledgment.
    A statement of indebtedness contained in an informal attempt to make a will, and not intended to be communicated to the creditor during the life of the debtor, is not a sufficient acknowledgment to take the claim out of the statute of limitations.
    Appeal by plaintiff from a judgment recovered by her against the defendant, and also from an order denying motion for new trial.

      E. H. Pomeroy, for app’lt; W. Mitchell, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the sum of $4,000, with interest, being an amount alleged to have been loaned by the plaintiff to one Mary Etta Camp at various times prior to December 28, 1882. The complaint also alleged that on said December 28, 1882, the said Mary Etta Camp acknowledged in writing that she owed the plaintiff the said $4,000 so loaned, and promised to pay the same, and signed said acknowledgment and promise.

Upon the trial it appeared that said Mary Etta Camp died November, 1884, leaving a last will and testament, dated July 19, 1883, after the memorandum hereinafter mentioned. By said will James W. Camp was appointed executor, to whom letters testamentary were duly issued upon the probate of the will. The executor having died, the defendant was duly appointed administrator with the will annexed. This action was originally commenced against the executor, and after his death revived as against the administrator.

The answer denied the loan, acknowledgment and promise to pay, and set up as a separate defense the statute of limitations, and the satisfaction of any claim by reason of said alleged loan by a legacy of $5,000 bequeathed to said plaintiff by said Mary Etta Camp in her last will and testament.

The plaintiff offered in evidence a certain memorandum book of the said Mary Etta Camp in the possession of the defendant, in which appeared the following in lead pencil, in the hand-writing of said Mary Etta Camp :

“57 St. Mark’s Place, 1 N. Y., December 28, 1882. [
“ I, Mary Etta Camp, of the city of New York, now to reside, being of sound mind but of uncertain health, do make this, my last will and testament, in case I am not able to make out more fully a statement more minute in its details, to my sister, Annie E. Smith, must be paid out of my estate $4,000 which I owe her, and my debts which I may leave unpaid to,
“ Mary Etta Camp,
“ Mary Etta Camp,
“ Mary Etta Camp.”

This memorandum remained in the possession of Mary Etta Camp in her lifetime, and on her death was found amongst her papers by her executor, and produced upon the trial by the defendant upon notice by the plaintiff. It does not seem to have been seen by anybody during the lifetime of the decedent.

There were certain other entries in the book put in evidence by the plaintiff made since the 1st April, 1881, amounting to $175, which appeared to be the acknowledgment of receipts of moneys from the plaintiff by the decedent- The plaintiff offered to prove items in these books prior to April 1, 1881, aggregating a large sum of money, and similar to thosé mentioned, running back to 1872.

This action having been commenced on the 9th October, 1888, ■ these items were considered to be barred by the statute of limitations, unless they were revived by the acknowledgment of December 28, 1882, and they were, therefore, excluded.

The court thereupon directed a verdict for the sum of $175 and the interest; and a motion having been made for a new trial, which was denied, from the judgment and order thereupon entered this appeal is taken.

The single question is whether the memorandum dated December 28, 1882, was such an acknowledgment as took the claim out of the statute.

It is well settled that an acknowledgment to prevent the statute of limitations from running must be intended to be communicated to the creditor or to influence his conduct; the theory being that because of the promise and acknowledgment he has probably refrained from taking those steps which he otherwise would have taken to prevent the statute from running.

In the case at bar it does not appear that the memorandum in question was ever intended to be communicated to the creditor during the lifetime of the debtor, or in anywise to influence her conduct. In fact the memorandum appears to be an informal attempt of Mary Etta Camp to make a will, and as it was futile for such purpose its objects cannot be perverted from that which was intended by the subscriber into an acknowledgment of an indebtedness which would be binding upon her. Even if it had been a will formally executed, it was revoked by the will of July 19, 1883, and an acknowledgment signed by a party recalled before the creditor has knowledge of it cannot possibly form the basis of a claim that the statute of limitations has ceased to run.

The whole tendency of the decisions upon this subject is that the acknowledgment must be communicated to the creditor for the purpose of influencing his action or that it might influence his action.

It is not necessary to cite authorities on this subject. In the Matter of Kendrick, 107 N. Y., 104; 11 N. Y. State Rep., 346, an acknowledgment under oath of an indebtedness was held to be insufficient to take the debt out of the statute, because it was not made to the creditor nor to his agent, nor to any one acting in his behalf; nor was it intended to be communicated to him or to influence his conduct. And it was held that an admission under such circumstances to a stranger was not effectual to rebut the presumption of payment or to revive a debt barred by the statute. Numerous other cases might be cited sustaining the principles already enunciated.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J., concurs.

Brady, J.—I concur, but with some reluctance.


text:
    George Johnson, Resp’t, v. Charles E. Tyng, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Contract—Waiver of default.
    Plaintiff and defendant entered into an agreement by which the latter was to furnish raw material and the former to work it up, and defendant was to pay therefor at prices fixed therein; the agreement to terminate on two months notice. In 1884 such notice was given and plaintiff stopped work, but in a few days thereafter a new contract was made. Held, that in view of the negotiations which resulted in the making of the new agreement, whatever defaults may have taken place under the former one were waived, and that plaintiff had a right of action for the amount due thereunder at the time of the making of the new agreement.
    8. Same—Breach—Lien.
    The new agreement provided that defendant was to"have the exclusive sale of the entire product of plaintiff’s mill; that if he failed to make payments as agreed, the agreement should on ten days notice be null and void, and any sums due should be a lien on any stock or material belonging to defendant which may then be in the mill. One of the payments not having been made, plaintiff gave the ten days notice and immediately stopped work. Held, that plaintiff thereby broke the agreement on his part and could not recover for the work done prior to the breach, and that the lien provided for did not exist until the termination of the ten days from the giving of the notice, and therefore was not available to plaintiff.
    Appeal from judgment entered upon decision of the court after trial without jury.

      T. M. Tyng, for app’lt; J. C. O' Connor, for resp’t.
   Van Brunt, P. J.

This action was brought to recover certain moneys claimed to be due by defendant to plaintiff.

The plaintiff was a manufacturer working a steam rolling mill and the defendant was a vender of steel. In 1879 the defendant made an agreement with the father of the plaintiff by which he agreed to furnish crude steel to the father of the plaintiff, the latter to manufacture it for him at a fixed rate of compensation. The agreement was continued during the mutual pleasure of the parties and to terminate only after two months notice of such discontinuance and the completion of all contracts then entered into.

In December, 1881, the father of the plaintiff died, and subsequent thereto the defendant entered into an agreement with the plaintiff, who had succeeded to his father’s interest in the mill, which had in the meantime been removed to Pennsylvania. This agreement was a continuation of the agreement theretofore made between the defendant and plaintiff’s father, and provided that the defendant should supply raw material and the plaintiff was to work it up and defendant was to pay plaintiff at the prices fixed in the agreement and that the agreement, was to terminate on two months notice. Under this agreement the parties continued business over two and a half years, until the 16th of July, 1884, when notice was given terminating the same two months thereafter. At this time there was §331.56 due under this second agreement and the plaintiff stopped working thereunder. On the 31st of July, 1884, the parties entered into a third agreement which provided for its continuance for five years, during which the defendant was to have the exclusive sale of the entire product of the plaintiff’s mill with a credit of sixty days from the date of each monthly account within which to pay the amount thereof.

It further provided that in case the defendant should fail to make payment as provided in the agreement, that the agreement should upon ten days personal notice be null and void. This third agreement was performed on both sides for a year after it was made, until the 25th of July, 1885, at that time it being claimed by the plaintiff that the defendant had made default in one of his payments. He gave defendant the notice of ten days terminating the agreement and immediately stopped work. There was a balance claimed to be due upon this third agreement at this time, and for the balance due under the second agreement and under this third agreement this action was brought and recovery was had for the whole amount, and from the judgment thereupon entered this appeal is taken.

The claim of the defendant is that the plaintiff cannot recover the moneys sued for because he failed to perforin the contract under which these moneys were earned, and that the breach of the contract caused the defendant certain damages as alleged in the counterclaim.

It seems to us, in view of the negotiations between these parties which resulted in the making of the third agreement, that whatever defaults may have taken place under the second agreement were waived, and that the plaintiff would have a right of action against the defendant for the amount due under that second agreement at the time at which the third agreement was entered into..

The case in respect to the claim made under the third agreement, however, is entirely different. By the terms of the third agreement, the plaintiff was to have the right to terminate the same in case the defendant should fail to make payment as therein provided upon ten days personal notice. And the plaintiff expressly states, in the course of his cross-examination, that the object of requiring the ten days notice was to enable the defendant to hold on to the agreement for these ten days.

It appears from the uncontradicted evidence in the case that instead of waiting till the ten days to stop work, at which time the agreement became null and void by its terms, the plaintiff stopped work instantly and refused to go on during the period of these ten days, and thus broke the agreement upon his part. The terms of the agreement did not provide that the agreement should become null and void in case the defendant failed to make payment in accordance with its terms; but it gave the plaintiff the option in case of such failure to terminate the agreement by giving ten days notice, such termination evidently to take place after the expiration of the ten days for which the notice had been given. Therefore the position of the plaintiff is a breach upon his part of the terms of the agreement under which he claims judgment against the defendant. In order that the plaintiff should recover these various sums of money which he claims, it was necessary for him to show that he had performed the contract on his part, and until he established that proposition no right of action in his favor existed. The plaintiff not only did not establish this proposition, but it was proven that he broke the agreement itself by failure to comply with its terms. This being the condition of. the proof, we do not see how the plaintiff can recover for the work done prior to the breach.

It is urged that by the provisions of the agreement the plaintiff was to have a lien upon the termination of the agreement upon all the material which was sent to him by the defendant in case of a breach. But that lien did not exist until the expiration of the ten days after the giving of the notice, and after the agreement had become null and void. The provision is as follows: “It is further agreed that in case the party of the second part shall fail to make payments as above provided, this agreement shall,' upon ten days personal notice, be null and void, and any sum or sums which may at such time be due the party of the first part shall be a lien upon any stock pr material belonging to the party of the second part which may then be in the mill.” The words “ at such time ” evidently refer to the time when the agreement shall become null and void, namely, ten days after notice. “ The material belonging to the party of the second part which may then be in the mill.” The phrase “ then ” applies clearly to the time when the agreement becomes null and void, as aforesaid, on the tenth day after the giving of the notice, otherwise no effect can be given to the requirement of ten days notice.

There is nothing in the agreement going to show that because of the failure of the defendant to pay pursuant to its terms the plaintiff had a right then to stop. The parties had expressly provided otherwise ; they had expressly provided that for ten days after defendant had been in default he could claim that the plaintiff should perform his part of the contract although the defendant had failed to perform his.

The parties having contracted in this manner, the plaintiff cannot be heard now to claim that he should not be bound by the provisions of his contract.

We think, therefore, that the judgment was erroneous and that the same should be reversed, and a new trial ordered, with costs to appellant to abide event,

Daniels and Brady, JJ., concur.


author: Pryor, J.

text:
    The National Union Bank of Dover, N. J., App’lt, v. Marvin T. Reed et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 5, 1891.)

    Assignment fob cbeditobs—Pleading.
    An allegation in the complaint in an action to set aside an assignment for creditors that such assignment “ was made in had faith and with intent to hinder, delay and defraud creditors” sufficiently sets forth the facts constituting the cause of action, as the statute makes the fraudulent intent the fact from which the invalidity of the assignment is deduced, and pleading facts to show such intent would he pleading evidence.
    Appeal from order dismissing the complaint on the ground that it does not state facts to constitute a cause of action, and from a judgment entered on said order.

      George Carlton Comstock, for app’lt; William F. Mac Rae, for resp’ts.
   Pryor, J.

Appeal from order dismissing complaint and from judgment entered on the order.

Action to set aside an assignment for the benefit of creditors, on the ground that it was made with intent to hinder, delay and defraud creditors. The assignment was incorporated in the complaint. At the trial a motion by defendants was granted, dismissing the complaint for insufficient statement of a cause of action. The contention of defendants and the ruling of the court were :'that an allegation in the complaint “that the said assignment was made in bad faith and with intent to hinder, delay and defraud creditors ” was such an essentially defective averment of fraud as to invalidate the pleading; and whether or not this be a true proposition of law is the only question for review.

Embodying an immemorial rule of the common law, the Code prescribes that a complaint “ must contain a statement of the facts constituting the cause of action.” By the imperative import of this language facts must be stated and not conclusions of law.' But what facts ? Wot evidentiary facts; that is, tending to prove the ultimate facts in litigation; but those ultimate facts themselves; in other words, facts “constituting the cause of action.” Wow, what is the fact “ that invalidates an assignment.” By the express terms of' the statute that fact is “ an intent ” on the part of the assignor “to hinder, delay or defraud creditors.” Wothing more than this intent is requisite to defeat an assignment; this intent alone is fatal to an assignment. The intent to defraud is a fact, a subjective fact, indeed; but still as essentially a fact as anything cognizable by the senses. In other actions a mental condition is a fact, an essential fact, too; as, for example, an evil motive in malicious prosecution. An intent to defraud is so much a fact that a party to whom it is imputed may testify directly to its existence, or in disproof of it, Forbes v. Waller, 25 N. Y.,430; Seymour v. Wilson, 14 id., 567; is so much a fact that in all cases of conflicting evidence it must be submitted to the jury, and the verdict of the jury upon it is conclusive. Tilson v. Terwilliger, 56 N. Y., 273; Tallman v. Kearney, 3 T. & C., 412; Miller v. Lockwood, 32 N. Y., 293. And not only is the intent to defraud a fact, but in a suit to avoid an assignment it is the essential fact in the cause of action, a fact without an allegation of which the complaint is defective. Shultz v. Hoagland, 85 N. Y., 464, and cases infra. So, conversely, it is a perfect defense to such an action to show that the assignment was made in good faith and without intent to defraud. Tallman v. Kearney, 3 T. & C., 414.

The intent to defraud being the single and the all-sufficient fact requisite to defeat the assignment, it results that any allegations of fact to show that intent would have been a pleading of evidence, and so inadmissible. Upon principle, therefore, the allegation of fraud in the complaint was sufficient to support the action. And so are the authorities. In Beardsley v. Foster, 36 N. Y., 565, the court of appeals held a complaint insufficient because it did not directly aver that the transfer was made with intent to hinder, delay and defraud, but, instead, did what defendants here say plaintiff should have done, namely, set out the details of the alleged fraudulent arrangement. See Jessup v. Hulse, 29 Barb., 539; Hastings v. Thurston, 10 Abb., 418; Mott v. Dunn, 10 How., 231; Durant v. Pierson, 29 N. Y. State Rep., 510.

Hone of the cases cited by respondent holds a different doctrine from that maintained in this opinion; plainly enough, in an action of deceit, it is not sufficient to allege a fraudulent representation” without more; but the representation must be set forth that the court may see whether it be calculated to impose upon plaintiff. So, to impugn any transaction, a bare, general allegation of fraud is nugatory, because fraud is an inference from particular facts. But the statute makes an intent to defraud creditors the premise from which the law deduces the invalidity of the assignment ; the fraudulent intent is the fact; the invalidity of the assignment is the legal conclusion. If here the allegation were generally that the assignment is fraudulent, then the cases cited would be analagous; but the complaint avers, not fraud generally, but the specific fact of an intent to defraud; and this is enough to support the action.

The judgment and order must be reversed, with costs of appeal to abide the event.

Allen and Bischoff, JJ., concur.


text:
    Charles E. Bidwell and James M. French, Resp’ts, v. John B. Overton, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1891.)

    1. Pleading—Denial.
    A statement in an answer, that " defendant has not knowledge or information sufficient to form a belief as to the fifth paragraph of the complaint,” which alleged shipment of goods, is not a denial and does not put. in issue the facts alleged in such paragraph.
    2. Same.
    Such defect is not cured hy a subsequent allegation that the pleader is. informed and believes that the goods were not shipped in the months, stated in the complaint and' that he will so prove on the trial hy way of defense. Such allegation is insufficient as a traverse of the allegation of due shipment, and raises no issue.
    Appeal from judgment of the general term of the city court,, affirming a judgment on a verdict.
    Action for refusal to accept and pay for goods pursuant to a contract of purchase.
    The sale in question was of a parcel of pepper, “ to be shipped. ■ J une—August, 1889, by steamer from Straits, direct or via Europe for this ” and to contain “ dust not over three cent.”

      Frank E. Blackwell, for app’lt; Carlisle Norwood, Jr., for resp’ts.
   Pryor, J.

As to the law of the case there is no controversy between the parties; but it is agreed that to entitle plaintiffs to a recovery, it was necessary for them to show that the pepper was shipped when and in the mode required by the contract, and that it was not adulterated by more than three per cent of dust. These were the only questions of fact litigated on the trial; and we are of opinion that the evidence was sufficient to make a prima facie case for the plaintiffs as to the quality of the pepper; and, therefore, that the verdict in their favor is conclusive upon that issue.

But, in respect to the other questions, namely, whether the Sepper was “ shipped during June-August, 1889, by steamer from traits,” we find no evidence upon the issue except the recital in the bill of lading, the validity of which as proof of the fact is presently to be discussed.

Upon tender defendants refused to accept the pepper; and that they had the right so to refuse if the stipulation as to time and mode of shipment were not fulfilled is an unimpeachable proposition of law. Time and mode of shipment, as settled between the parties, is not an immaterial accessory affecting only the method of performance; but is of the substance of the agreement because identifying its subject matter. If a specific article be sold it is ■quite unimportant when or in what manner it may be transported to the buyer; for in any event he gets the thing for which he bar•gained. An executory contract for an indefinite sale of merchandise identifies no subject of the sale; but a predicate of the time ■and mode of shipment conclusively ascertains and distinguishes it. A contract merely for the sale of so much pepper and of such a quality is executed by the delivery of any pepper of the given kind and quantity; but a tender of pepper shipped in March by •sailing vessel from Liverpool is not a delivery of the pepper agreed to be shipped. “ during June-August by steamer from Straits,” and the purchaser is not bound to accept such delivery though it be of pepper the same in quality and quantity as that stipulated in the •contract

‘’The seller is limited to the description of the goods in the -contract and the buyer is not bound if there be a variance even in an unimportant particular.” Hence, a contract for iron to be .shipped by the plaintiffs would not be fulfilled by the delivery of iron shipped by another ; for “ however unimportant the circumstance might be, it entered into the contract of the parties and the defendant could not be required to take any other iron.” Cunningham v. Judson, 100 N. Y., 179, 189. “ The words as to shipment are part of the description of the subject matter; ” and hence a contract for iron to be shipped in December, 1879, or January, 1880, is not performed by a delivery of iron shipped in February, 1880. Hill v. Blake, 97 N. Y., 216; Welsh v. Gossler, 89 id., 540.

It was incumbent, of course, on plaintiffs to establish the fact that the pepper tendered to defendant was the pepper they had agreed to deliver, and this they could do only by proof that the pepper offered was shipped at the time, in the manner, and from the place provided by the contract. Such proof appears in the Straits bill of lading, but the defendant objected to the admission of the paper, and the question is, did the court err in ruling it to be competent evidence ? Exhibiting the paper to a witness, counsel for plaintiff asked : “ Is this the Straits bill of lading ?” To which the witness responded: “ That is the Straits bill of lading.” Thereupon counsel offered the paper in evidence; but defendant’s counsel interposed with thé questions: “Did you see the bill of lading signed ? Do you know anything about the name signed at the foot of the bill of lading? Did you ever see that person write his name ?” These inquiries being answered in the negative, defendant’s counsel objected to the admission of the paper on the specific ground that it had not been proved; but the court received it, and to the ruling defendant duly excepted. Assuming, though not conceding, that the paper, to which the defendant was in no sense a party or privy, might be competent evidence against him, argument is not necessary to show that the proof is altogether insufficient to establish the execution and authenticity of the document; and so that its admission was error. And of this the learned trial judge, on reflection, became conscious, for afterwards he declared that he received the paper only to identify it as the one of which the witness had spoken, and not “as evidence of any fact.” The paper, being avowedly incompetent evidence of the fact in controversy, and being admitted only for another and immaterial object, cannot now be recognized in the case for a purpose which was expressly repudiated by the court on the trial. To do so would be a juggle upon justice.

Eliminate, then, this bill of lading, and the case is totally destitute of evidence to show a shipment in compliance with the térms. of the contract.

It results, therefore, that the court erred in denying defendant’s motion to dismiss the complaint, and the judgment must be reversed, unless another ground urged by respondents in support of the judgment be tenable.

Apparently aware of the defect in their proof, respondents contend that the due shipment of the pepper was not in issue upon the pleadings. As to the shipment, the allegation of the complaint is (paragraph V): “ That in the month of July or August, 1889, plaintiff having purchased ” the pepper, “ shipped the same by steamer via Europe in said month,” to which the answer responds that: “Defendant has not knowledge or information sufficient to form a belief as to the fifth paragraph of the complaint.”

In Baylis v. Stimson, 110 N. Y, 621; 16 N. Y. State Rep., 175, the court of appeals intimated that an averment of want of’ knowledge or information sufficient to form a belief as to the truth of unspecified allegations in designated paragraphs of an answer was not an effective denial of those allegations. But here is something still more loose and indefinite, namely, an avowal of lack of knowledge or information as to the paragraph itself, and. not of the statements of facts in the paragraph. For this form of pleading there is no warrant either in the rules of the common law or in the provisions of the 'Code, and the averment is plainly insufficient to raise an issue. “ It is a fundamental rule of pleading that if a party wishes to traverse a fact, he must deny it in plain and unambiguous terms.” The Pfaudler Co. v. McPherson, 20 N. Y. State Rep., 473.

But, appellant contends that the defect is repaired by the subsequent averment in the answer, that, “ Defendant is informed and believes that the said goods were not shipped during the month' of June, July, August, 1889, nor until September in that year, in compliance with the terms and stipulations of the aforesaid agreement, all of which this defendant will prove on the trial of this cause by way of defense.” A denial may be on information and belief, Bennett v. Leeds, 110 N. Y., 150; 16 N. Y. State Rep., 841, but here is no denial at all, but a mere declaration that the pleader is informed and believes that a certain allegation in the complaint is untrue; and that he will so prove on the trial by way of defense. This too, is insufficient as a traverse of the allegation in the complaint of the due shipment of the goods; and as no issue was raised as to the fact, it stood admitted; and the plaintiffs were absolved from the obligation of proving it. We accept this conclusion the more readily, since the justice of the case is clearly with the, respondents.

Judgment affirmed, with costs.

Allen and Bischoff, JJ., concur.


text:
    James M. Griggs et al., Resp’ts, v. John G. Smith, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Evidence—Admissions of partner after dissolution.
    In an action to recover for goods sold to a firm which has been dissolved, declarations of one partner as to the amount and value of the-goods sold, made after the dissolution, were admitted as against the other. Held, error.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      L. Laflin Kellogg, for app’lt; Edward W. S. Johnson, for resp’ts.
   Pryor, J.

Appeal from judgment on report of referee. Action for goods sold and delivered. Leonard W. Johnson was a nominal defendant, but he defaulted in pleading, and died pending the action. The action proceeded against defendant Smith, alone; who, by answer, traversed the substance of the complaint, and alleged a previous dissolution of his copartnership with Johnson, and notice thereof to plaintiffs.

The action, then, is to subject a retired partner to liability for goods sold to the firm of which he was a member. The issues, litigated in the trial were: the amount of goods delivered, and. whether notice of the secession of defendant Smith from the firm of Leonard W. Johnson & Oo. had been communicated to plaintiffs. Counsel for appellant submits an elaborate argument to establish that notice of the dissolution of the firm was given to plaintiffs, and that the proof of the delivery of the goods is insufficient to support the judgment; but. for the fatal error apparent in the record, discussion of these points is unnecessary.

Upon substantially uncontradicted evidence, the referee found that the copartnership of Johnson & Smith was dissolved on the 31st of July, 1888. It appears that part of the goods in question were delivered before the dissolution and part afterwards, but, in disposing of the case, we assume that all were furnished while defendant Smith was still the partner of Johnson. On.this concession the only issue in contestation would be the amount of goods supplied the firm. The referee ascertained the amount to be §2,321.67; and for that sum, with interest, he directed judgment against appellant.

But, in proof of their claim, plaintiffs were allowed, despite appellant’s objection, to introduce in evidence declarations of Johnson after the dissolution of the copartnership. On the 2nd of August (the date of the dissolution was the 31st July), two attorneys had a conversation with Johnson in reference to the claim in controversy, that is, the amount due plaintiffs for goods sold and delivered to the recent firm. One of them inquired of Johnson “whether the amount - stated in the complaint was a correct claim against the firm of Leonard W. Johnson & Co. ?" to which he answered, “Certainly it is.” In corroboration of this witness the othér testified, that in reply to the question whether the claim was correct, Johnson said “Certainly, certainly.’’ To this evidence. exception was duly taken.

That the declarations or admissions of one partner after dissolution of the firm are not competent evidence against the other, is settled beyond controversy. “ He may bind himself by his admissions, but as to his former partners, his agency, except for ■special purposes, is terminated by the dissolution; and his admissions are like those of a stranger, and they are not bound by them,” Nichols v. While, 85 N. Y., 531, 536; and because of the error in receiving such admissions in evidence, the judgment in the case cited was reversed. And in Pringle v. Leverich, 97 N. Y., 181, 186, the court say: “ After a dissolution of a firm by the retirement of one of its members, it is well settled that the surviving members cannot bind him by their admissions; ” and here too, for error in receiving such admissions, the judgment was reversed. See Shaler v. Alden, 5 Alb. L. J., 333; Hogg v. Orgill, 34 Pa., 344; 2 Lawson’s Eights, Remedies, etc., § 676, note 11.

The suggestion that the admissions of Johnson were received only to disprove the dissolution, and so were competent evidence, is untenable ; for, first, the evidence went directly to the cause of action, and not merely to the fact of dissolution; and secondly, in their printed argument, respondents adduce these admissions as competent and conclusive evidence of the correctness of the account and the liability of the appellant.

Nor is the error in the admission of the evidence obviated by the fact that the claim was otherwise abundantly established, and was challenged by no contrary evidence on the part of appellant; for, first, the other evidence in support of the claim was of questionable competency and of inconclusive effect; and secondly, “ it may be that there was, in fact, no doubt as to the amount of the indebtedness of the firm ; but it was put in issue ; and objection having been taken, plaintiff was bound to prove it in a legal way. We see no answer to the objection, and as an important rule of law was violated, we cannot ignore it.” Pringle v. Leverich, 97 N. Y., 187.

Neither may it be contended that the evidence was only cumulative, and so may not have been of any detriment to defendant; for, to obviate error in the admission of incompetent evidence, the court must see that the evidence could not by any possibility have affected the result, Waring v. U. S. Telegraph Co., 4 Daly, 233; Foote v. Beecher, 78 N. Y., 155, and if improper evidence be given upon the trial, though merely cumulative, it will be cause of reversal. Baird v. Gilleit, 47 N. Y., 186.

It nowhere appears in the case that the referee discarded or disregarded the objectionable evidence. The judgment must be reversed, and a new trial had, costs of appeal to abide the event

Allen and Bischoff, JJ., concur.


author: Per Curiam.

text:
    The American Encaustic Tiling Co., Limited, Resp’t, v. Lorenz Reich, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Evidence—Agency.
    In an action for materials furnished and work, labor and services performed in laying tiles on defendant’s premises, the plaintiff, to show agency in the architect to contract, was allowed to prove that about a. year before the work was done one O. had called on defendant in relation to doing the work and was referred by him to the architect. Held, no error; that if there was a recognition of the architect’s authority it was in relation to the very transaction in dispute.
    2. Same—Cross-examination.
    It is discretionary with the court whether to receive evidence in favor of defendant when brought out on cross-examination of plaintiff’s witnesses, or to reserve its admission as properly part of defendant’s proof.
    3. Same—Experts.
    Evidence that the arehitect had had similar work done on other buildings is competent on the question of his capacity as an expert to testify to the value of the work.
    Appeal from judgment and order of the general term of the-city court, affirming judgment on verdict.
    Action for work, labor and material, in the construction of defendant’s hotel.
    Defense, that the architect, by whom plaintiff was employed, had no authority to contract for the work and material, but was-himself to do the work and furnish the material at his own expense, and that defendant had settled with him.

      The plaintiff, to prove that the said Schellinger was the agent of the defendant, called one Arthur .Curtis, who testified that he was in the employ of Aspinwall Sons, and that about a year before the work in question was done, in behalf of his employers, he called upon the defendant in regard to placing tiling in the Hotel Cambridge, and that the defendant referred him to his architect, Schellinger.

      Abram Kling, for app’lt; Charles A. Flammer, for resp’t.

       Affirming 34 N. Y. State Rep., 64.

   Per Curiam.

The decisive question in the case, namely, whether the architect employed by defendant to superintend the construction of the building had authority, real or apparent, to make the contract with plaintiff, was strenuously litigated on the trial; and as there is sufficient evidence of authority in the record to carry the case to the jury, their verdict is here conclusive, unless it be vitiated by the alleged errors in the admission and. exclusion of evidence.

Appellants chief exception is to the admission of evidence that, in another and different transaction, defendant recognized the architect as his agent. But to this contention there are two sufficient answers: first, the evidence is merely that “ I was to see the architect,” and so shows no recognition by defendant of the architect’s authority to make the contract in controversy; and, secondly, if there were such recognition, it was of authority in the architect touching the very transaction in dispute. Hence, Duryea v. Vosburgh, 121 N. Y., 57; 80 N. Y. State Rep., 683, is not in point, for in that case the attempt was to establish agency in one transaction by proof of agency in another and different transaction. Page 65.

The exception to the exclusion of certain evidence on cross-examination is also invalid, for two reasons : first, the plaintiff was then presenting its case; and even were the offered evidence competent, it was discretionary with the court whether to. receive it at that moment, or to reserve its admission as properly part of defendant’s proof, Neil v. Thorn, 88 N. Y., 270; secondly, the substance of the excluded testimony was subsequently brought out by appellant.

Appellant’s other principal exception is as 'untenable as the former ones; for evidence that the witness had tiling work done in other buildings was clearly competent to the purpose for which it was received, namely, his capacity as an expert" to speak to the value of laying tiles. In the remaining exceptions we see no error prejudicial to appellant.

The judgment and order appealed from must be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.


author: Allen, J.

text:
    Charles Bab, Resp’t, v. Moritz J. Hirschbein, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Bbokebs—Commissions—Evidence .
    Plaintiff was employed by the owner of premises to sell the same on condition that the purchaser should pay the commissions, and procured defendant as a purchaser, who entered into a written contract which provided that he should pay the brokerage. The title proved defective and defendant refused to carry out the contract. In an action for commissions the answer set up an agreement between defendant and plaintiff whereby the latter was to receive commissions only in case the title was good. The court excluded evidence to show such agreement. Held, that there was no right of action in the plaintiff under the written contract between the vendor and defendant; that the only recovery which could he upheld must rest upon the oral agreement between plaintiff and defendant, and it was error to exclude evidence as to what such agreement was.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff, entered on verdict.

      John Henry Hull, for app’lt; Maurice Rapp, for resp’t.
   Allen, J.

This is an appeal from a judgment of the city court, affirming a judgment which was entered upon a verdict at a trial term of said court in favor of the plaintiff. The action was brought by the plaintiff to recover from the defendant a broker’s commission for the sale of property. An agreement in writing was entered into between the vendor and defendant which contained the following clause: “ And the party of the second part agrees to pay all commissions or brokerage arising by reason of the sale of said property." The agreement was never performed, as the title proved defective, and the contract was afterwards cancelled.

The complaint alleges that one Lane, the owner of the property, employed plaintiff to sell the same upon condition that the purchaser should pay the commission on the same, and the plaintiff procured the defendant to purchase the premises at the price of $28,500, and that defendant, well knowing the terms upon which the plaintiff was employed, agreed to pay the plaintiff’s ■commission. The answer is a denial of the allegations of the complaint, and as a further defense, alleges an agreement between defendant and plaintiff whereby plaintiff was only to receive commissions in case the "title to said premises proved good ; that the title proved defective and that therefore plaintiff was not entitled to his commission. If the plaintiff had a cause of action against the defendant for his commission as .broker upon the sale of this property, it necessarily was based upon the oral contract between the plaintiff and defendant and the agreement by the defendant to pay the plaintiff’s commission. Sufficient is pleaded in the complaint to support an action upon the oral contract. There was no right of action in the plaintiff under the written contract between the vendor and the vendee.

The case of Lawrence v. Fox, 20 N. Y., 268, and other kindred cases, have no application, According to the doctrine of those cases, to entitle the plaintiff to an action on this clause of the contract, it must have been made for his benefit, he being neither a party nor privy to the contract, nor to the consideration. This clause of the contract was for the benefit of the vendor and not for the benefit of the broker, and presumably the vendor sold the property for less than he otherwise would on account of this provision in the contract

The trial of the case in the court below, however, was conducted upon the theory that the action was brought upon the contract of sale between the vendor and the purchaser; and the case was presented to the jury by the learned justice at trial term upon that theory, for he charged the jury that there was but one question for them to consider and that was who was the cause of Lane and Hirschbein’s signing the contract; thus assuming that if the plaintiff was the procuring cause of the contract he was entitled to recover under the contract irrespective of any oral contract on the part of the defendant to pay the commission and irrespective of the further question whether or not there was any agreement between the plaintiff and defendant that no commission should be paid if the title proved bad. These were matters for the consideration of the jury in deciding as to what was the oral contract, if any, between the plaintiff and defendant. The defendant was sworn as a witness and testified as to what the contract between him and plaintiff was, and swore that he said he would not sign the contract unless Mr. Bab stated he should not pay the commissions if the title was not good and that Mr. Bab so stated in the presence of Mr. Hassey. The court of its own motion struck out all the evidence of the witness as to any contract that he had made that he should not be held liable for commissions unless the title was good, on the ground that whatever was agreed between them was merged in the written contract. After this the witness further testified that it was agreed that the plaintiff was not to have a commission unless the title proved good. At the close of the testimony of this witness, upon the motion of plaintiff’s counsel to strike out parts of his testimony as irrelevant, immaterial and incompetent, the court said, “ The motion is granted as to all the evidence given by this witness as to what the contract was as to the payment of the commissions, on the ground that it is merged in the written contract; ” and to this the defendant’s counsel took an exception.

We think this such error as requires us to reverse the judgment. The only recovery which could be upheld under the circumstances of this case must rest upon the oral agreement between the plaintiff and the defendant as to the payment of commissions. The defendant’s testimony as to what the agreement was between him and the plaintiff was entirely withdrawn from the -jury by the action of the trial judge. We think there should be a new trial of this case, and the judgment is accordingly reversed, and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.
      Reversing 33 N. Y. State Rep., 423.


text:
    Edward E. Gold et al., App’lts, v. James Clyne et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Business corpobations—Liability op directobs.
    Defendants were directors of a corporation formed under the act of 187ff, for which plaintiffs had contracted to erect certain buildings. Plaintiffs received all the payments on the contracts except the final one, and the work was not completed until after the corporation was disolved hy the expiration of its charter. No annual report was ever filecL Reid, that defendants were not liable therefor ; that the corporation having ceased to exist before the debt arose, there was nothing to which the penal provisions of "the statute could apply; that the debt was not one then existing or incurred within the meaning of the statute.
    3. Same—Debt—When contbacted.
    A debt cannot be contracted until a liability has been incurred.
    Appeal from j udgment entered on report of referee.

      Ira D. Warren, for app’lts; Henry Thomson and Geo. A. Strong, for resp’ts.
   Van Brunt, P. J.

The defendants were directors of the Central Park Building Co., Limited, and the action was brought to charge them with liability for an alleged debt of the company as penalty for a failure to file the annual report of 1885. The corporation was organized in 1883, under the business act of 1875, and was, by its articles of incorporation, to continue for two years from the date of filing its certificate. This was filed on or about the 6th of June, 1883, and no annual report was ever filed. On the 23d of April, 1884, the corporation entered into a contract with the plaintiff to furnish and put up steam heating apparatus in four buildings known as the Navarro Flats, for which said company agreed to pay the plaintiffs $25,000, in four separate payments. The plaintiffs at once commenced work on their contracts and received payments from time to time until the sum of $15,-333.32 had been paid, which comprised all the payments which were to be made under the contract prior to the final completion of the work.

The plaintiffs completed their work according to the terms of their contract on or about the 7th of December, 1885.

Upon this state of facts the learned referee > found in favor of the defendants, and from the judgment thereupon entered this appeal is taken.

The decision of the learned referee was put upon the ground that the existence of the corporation ended in June, 1885, by the terms of its certificate, and at that time no debt was due to the plaintiffs from the corporation.

It is claimed, however, that by virtue of § 38 of the act of 1875, notwithstanding the dissolution of the corporation, their remedy still existed. Section 38 is as follows :

“ Section 38. The dissolution for any cause whatever of any -corporation created as aforesaid, shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liability incurred previous to its dissolution.”

And it is urged that by § 18 of the act in question the directors must within twenty days from the 1st of January in each year file an annual report, and if they fail to do so a liability is imposed upon them generally and severally to pay all debts then existing or that shall be contracted before such report shall be made. 0

Attention must be called to the words of the statute making the directors liable for “ all debts then existing; ” and it is probable that the meaning of this term is the one which must control the decision of this case.

It is easy to see the reason why § 38 above quoted was passed, because it had been held in the cases of McCulloch v. Norwood,. 58 N. Y., 562, and Sturges v. Vanderbilt, 73 id., 384, that the dissolution of a corporation even terminated an action then pending, and that all subsequent proceedings against the defendant were void unless the action were continued by an order of the' court as-provided by the Laws of 1832. If an action actually pending against a corporation terminated by the expiration of the term of its existence, it is clear that no action could be commenced against a corporation after its dissolution, and the dissolution referred to. in this case was a dissolution by expiration of time, and the action had to be revived by order of the court precisely the same as in the case of the decease of an individual pending action.

In order to avoid this condition of affairs, undoubtedly, § 38 was inserted in the statute to which attention has been called. This, brings us to a consideration of what § 18 means when it imposes a liability to pay all debts then existing and that shall be contracted before such report shall be made.

It is urged upon the part of the appellant that even though the debt may not have existed during the existence of the corporation, yet it had been contracted during such existence. Upon that point the case of Garrison v. Howe, 17 N. Y., 458, seems to be conclusive, and our attention has not been called, neither have we been able to find any adjudication interpreting in a different manner the language of the statute there construed, which is precisely the same as that of the section referred to in the case at bar.

In the case cited a contract had been entered into by the corporation with the plaintiff to furnish lumber for which they were to pay a certain price. Subsequent to the entering into the contract there was a default in the filing of the annual report, but such omission was repaired prior to the time of the delivery of the lumber, and the court held that the debt for the lumber furnished under the contract subsequent to its execution was not contracted when the agreement was signed. And the court say : “ If the statute was simply remedial, it might be said that plaintiff’s case was within its equity, but the provisions being highly penal, the rules of law do not permit the court to extend it by construction to cases not fairly within the language,” and that the statute contemplated the simple case of a debt contracted during the default in making the report

Attention may be called to the case of Leggett v. Bank of Sing Sing, 24 N. Y., 283, where a different interpretation was placed upon- words of similar signification,' but yet of a different character. It was there held that a provision in the articles of a banking association that the shares of its stock should, not be transferable until the shareholder shall discharge all debts due by him to the association, includes liabilities of the shareholders which have not yet matured; and that such a provision creates a valid lien as against the assignee of the shareholders who takes with knowledge thereof while the shareholder is under a contingent liability as endorser, and gives no notice to the bank of his claim until the endorser’s liability had become fixed. In that case the shareholder was an endorser upon the note held by the bank which at the time of the transfer of the stock was not due. After the transfer he became charged as endorser and it was held that the language in the articles of association included the liability of an endorser who had not been charged as endorser, the note not having become due.

It may be claimed that the case of Garrison v. Howe is not applicable to the case at bar, because at the time that the debt became due in the case cited the default did not exist, the trustees of the corporation having filed the annual report, whereas in the case at bar no such annual report was ever filed. We think, however, that this makes no difference, because at the time at which the debt became due and the liability arose the corporation was dead; so dead that even actions against it abated. Ho action could be commenced against it, except by the permissive force of the statute passed for the purpose of meeting this contingency. But for all purposes of corporate action and of the action of its directors or trustees as such it had ceased to exist, and consequently there was no corporation in being who could perform the act of filing the annual report.

We think, therefore, that the corporation having ceased to-exist before the debt arose, that there was nothing to which the statute could apply, as it was evidently not intended that a default having occurred there was no possibility of its ever being repaired.

Even if it were not for the rule laid down in the case of Garrison v. Howe, above cited, we think, upon "principle, it would be necessary to come to the same conclusion. The ground upon which the appellant bases his appeal seems to be that in the case of an executory contract the debt arises from the moment that the contract is signed. This clearly cannot be so, because non-constat the contractor may never complete his contract. In the case at bar the payment which forms the subject-matter of this action was not to be due until the completion of the contract, and it was uncertain at the time of the death of the corporation whether anything whatever would become due to the contractor, because he might never complete his contract. In other words, a debt cannot be contracted until a liability has been incurred, and no liability had been incurred by the corporation until the contract had been fulfilled.

Under all the circumstances, therefore, we are of opinion that the statute did not intend to impose a penalty upon the trustees of a corporation for not doing a corporate act after the corporation had ceased to exist.

The judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Daniels, J.

text:
    Fannie W. Reading, Resp’t, v. James B. Haggin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Accounting—Contract relating to land—Pleading.
    In an action for an accounting the complaint alleged an agreement made in 1871, by which plaintiff was to convey certain land in California to defendant, who was to purchase in a mortgage and certain debts, sell the land and pay to plaintiff one-third of the net proceeds after reimbursing' himself for the advances made, with interest; that the conveyance was made to defendant, and on information and belief that said mortgage and. indebtedness were purchased by defendant and the property sold and defendant has retained all the proceeds, and further alleged that defendant, has failed to account for and pay one-third of the excess to plaintiff. Held, that the complaint stated f. cts sufficient to constitute a cause of acnon for an accounting; that it was not indispensable that plaintiff should allege that defendant had funds in his hands obtained from the property which should be paid to her.
    2. Same—Jurisdiction.
    The courts of this state have jurisdiction of such an action when the defendant is found in this state, as the action does not relate so much to-the lands as to the conduct of the defendant in their management and disposition and the uses made by him of their proceeds.
    Appeal from an interlocutory judgment overruling demurrer to the complaint

      Chas. D. Alexander, for app’lt; Chas. M. Da Costa, for resp’t.
   Daniels, J.

The plaintiff commenced this action for an accounting by the defendant concerning the management and dispo^ sition of lands situated in the state of California, It is stated in. the complaint that in July, 1871, she entered into a contract with him, for a valuable consideration, to make and deliver to him a good and sufficient deed of all her right, title and interest, in and to a tract of land known as the Beading ranch, or so much thereof as would constitute 20,000 acres, and for which he .“ agreed, among other things, to purchase a certain mortgage on said estate known as the Hensley mortgage and so much of the indebtedness against said estate of Pearson B. Beading as he may deem proper, and to cause said property of said estate to be sold to satisfy said indebtedness, and defendant further agrees that if, at such sale of said estate, he shall purchase said estate, he shall hold the said property so ■ purchased together with the property so agreed, as aforesaid, to be conveyed to him until such time as he deems ad-visible, when he may sell and dispose of the entire tract of land, so purchased by him and so conveyed to him by the plaintiff, until such time as he deems advisable, and out of the proceeds of said sale shall retain all moneys by him expended in the purchase of the said land and of said claims in and about the said land for taxes or expenses thereon, or in connection therewith, together with the interest thereon from the date of payment, at the rate of one per cent, per month, and shall pay to plaintiff the one-third of any excess over and above any such advancements, outlays and expenditures, with the interest as aforesaid, defendant retaining the other two-thirds.

The complaint further states that she thereupon, and about the same time, conveyed the land to him. And about two months thereafter executed and delivered another deed of the same property to him, to more fully carry out the terms of the agreement first entered into. It is then alleged that the “ plaintiff is informed and believes that defendant, in accordance with the terms of said agreement hereinbefore in paragraph first of this complaint mentioned, did purchase the mortgage on said Beading Banch known as the Hensley mortgage and other indebtednesses against the estate of Pearson B. Reading^ deceased, and did cause the said property known as the Reading Ranch to be sold to satisfy said mortgage and other indebtednesses, and did cause the said property so sold to be conveyed to himself, and thereafter did sell and dispose of lands or parts thereof, and out of the proceeds of said sale did retain all moneys by him expended in the purchase of said land and of said claims and in about the land for taxes or .expenses thereon or in connection therewith, together with interest from the date of payment at the rate of one cent per month.

“ But defendant has failed to account for and pay over to plaintiff one-third of the excess of the moneys or any of the moneys received by him on said sale of said property over his advancements, outlays and expenditures, and has neglected and refused to pay and account for the same, although he has been continuously requested and urged to do so; and defendant is and remains accountable to plaintiff for said one-third of the excess of the moneys received by him on sale of said property over his advancements, outlays and expenditures.”

And in addition thereto that on, or about the fifteenth of June, 1888, he delivered to her a statement of receipts and disbursements, but so genera], vague and indefinite that it failed to give her accurate and definite information concerning the execution of the trust which he had undertaken, as that was set forth in the agreement made between them. And judgment is then demanded for an account of the dealings and transactions of the defendant under this contract, and of the moneys received and expenditures made by him, and that he be adjudged to pay her such sum as might be found to be due and owing tq her.

The ground of objection stated in the demurrer is that the complaint failed to state facts sufficient to present a cause of action. But while it is true that it is not alleged, unless by way of inference, that the defendant has money proceeding from the execution of the trust created by the agreement which should be paid over by him to her, still what was done under the agreement to carry it into effect, and by himself since that time in the management and disposition of the estate, entitled her to a full and clear exposition of its affairs. The business had been in progress for upwards of eighteen years, and it was due to the plaintiff that she should be accurately informed of what had transpired, and of the present condition of the part of the estate remaining unsold. And that she could only obtain voluntarily or involuntarily from the defendant. It was not indispensable that she should allege that the defendant had funds in his hands obtained from the property which should be paid to her. That she could not do in the absence of information from him exhibiting the condition of the estate. And she became entitled to that information for the purpose of ascertaining whether he withheld from her moneys obtained from the property which he ought to pay over. That was the scope and design of the action, and it seems to be within the limits of the authorities. Upon this subject it has been said that wherever the account stands upon equitable claims, or has equitable trusts attached to it, the jurisdiction is absolutely universal. And that cases of accounts between trustees and cesluis que trust may properly be deemed confidential agencies, and are peculiarly within the appropriate jurisdiction of courts of equity. 1 Story Eq. Jur., 5th ed., .§§ 454, 465. The beneficiary is entitled to an account of the acts and management of the trustee, or quasi trustee, and, if it cannot be voluntarily obtained, then to-the aid' of a court of equity to secure it. And that is the ground upon which the case of Marvin v. Brooks, 94 N. Y., 71, 80-81, appears to have been decided. And that the trust, or fiduciary obligations, there related to money to be invested in property, and here in property to be managed and disposed of for the joint benefit of the parties, will not interfere with this application of that decision. If the jurisdiction ¡extended to the former, it necessarily must include the latter.

The case of Uhlman v. N. Y. Life Ins. Co., 109 N. Y., 421; 16 N. Y. State Rep., 371, in ho way infringes on this statement of the jurisdiction, for the plaintiff failed there because the element of a trust was held not to enter into it. The cases so numerously cited by the defendant’s counsel, brought on entire contracts before the period for their complete performance had expired, have no application to this action. They were actions at law depending upon the fact of full performance for their success, and do not need to be especially examined. While here the action is supported by the plaintiff’s right to an account, of which she has been deprived by the defendant.

In support of the demurrer it has been further objected that the complaint states no cause of action within the jurisdiction of this court, for the lands are situated in the state of California and their management was confined to that state. But the action does not so much relate to the lands, as to the conduct of the defendant in their management and disposition, and the uses made by him of their proceeds. And over that, as the defendant has been found within this state, this court has jurisdiction. This general - subject was at an early day considered in the case of Masie v. Watts, 6 Crunch, 148, where after an examination of the authorities it was concluded that, “ Upon the authority of these cases, and. of others which are to be found in the books, as well as upon general principles, this court is of opinion that in a case of fraud of trust or of contract, the jurisdiction of a court of chancery is . sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” Id., 160. And that very aptly includes this case, and it has since been followed without dissent. Watkins v. Holman, 16 Peters, 25, 57; Sutphen v. Fowler. 9 Paige, 280, 282; Newton v. Bronson, 3 Kern., 587; Gardner v. Ogden, 22 N. Y., 327.

It is not necessary to consider whether this objection is within the comprehension of the demurrer. For it is sufficient that it has no legal foundation to support it. Upon neither of these objections, nor any incidents of them entering into the subdivisions of the argument, was the defendant entitled to succeed. But the judgment should be affirmed, with costs, with leave to the defend-

ant to answer in twenty days on payment of the costs of the demurrer, and the costs and disbursements of the appeal

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


text:
    Anna Brinckhord, Resp’t, v. The Western Union Telegraph Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Negligence.
    The rule that where a thing that causes injury is shown to be under the management of the defendant, and the accident is one that in the ordinary course of events does not happen, it affords reasonable evidence that the accident arose from want of care, only applies to those cases where the want of care in the management of the thing used would naturally result in the happening of an accident of the kind established.
    3. Same—Explosion.
    Defendant operates an underground pneumatic tube in the city of New York. In an action for injury sustained by plaintiff, the testimony showed that while she was riding in a street car an explosion occurred, greatly jarring it and injuring her; that shortly thereafter there was a cover off a manhole near that spot, and one witness stated that this cover had certain letters thereon which would indicate that it belonged to defendant; but on cross-examination said it was too dark to see the letters at the time of the accident. There was no evidence to show what caused the explosion, or connecting defendant with the use of any explosive substances. Held, that there was no proof, whatever, to hold defendant liable.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      Rush Taggart, for app’lt; Jas. Fox, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages on account of personal injuries sustained by the plaintiff on December 19, 1886, by reason of the negligence of the defendant. The complaint alleges that the defendant is engaged in business as a common carrier of news and messages by means of electricity and otherwise, a portion of which is carried on within the city of New Y orle; that in connection therewith the defendant owns and operates an underground pneumatic tube laid and extending underneath Broadway from at or about Twenty-third street in said city.

That at various places along Broadway where said underground pneumatic tube is laid and extends are certain openings, vaults or manholes in the street for the purpose of allowing access to the said tube, which said openings, vaults, or manholes are covered with movable iron covers.

That one of said openings, vaults or manholes is at or near the corner formed by the westerly side of Broadway with the southerly side of Leonard street, and is lopated between the rails of the westerly track of the railroad laid on Broadway.

That at or about seven o’clock in the evening of December 1, 1886, an explosion occurred in the opening vault, or manhole, which it is alleged was occasioned solely through the carelessness and negligence of the- defendant; that at the time the explosion occurred the plaintiff was riding down Broadway in a horse car, and said car was directly over the said manhole, and by reason of tlie force of said explosion tlie horse car was lifted bodily from the track, and struck the ground with great force, and that the plaintiff was much frightened, hurt and bruised, and sustained damage. The answer admitted all the allegations of the complaint down to that which alleged that the explosion occurred in the manhole belonging to the defendant, and denied all the other allegations contained in the complaint.

At the trial the complaint was amended so as to allege that it was the duty of the defendant so to construct, maintain and operate said subway as that no injury should be caused to the public using Broadway, and that the defendant so negligently constructed and managed said tube that the explosion in question occurred.

The testimony offered on the part of the plaintiff was to the effect that at or near the intersection of Leonard street and Broadway, as the street car in which the plaintiff was riding was coming down Broadway, an explosion occurred under or near the car, greatly jarring it, and that this explosion occurred when the car was at or near the intersection of Leonard street and Broadway. It further appeared that shortly after the happening of the accident there was a cover off a man-hole at Leonard street; and this seems to be the sum and substance of the evidence upon which the defendant has been held.

There does not seem to be any evidence whatever connecting the defendants in any way with the happening of the accident. In the first place there was no evidence to show that the manhole in question belonged to the defendants or that they had any interest in or control over it.

It is true that one witness swore that the lid of this manhole had certain letters on it which would seem to indicate that it belonged to the defendant. But upon cross-examination it distinctly appeared that he did not know anything about it; that there were lids off some manholes on Broadway that did contain these letters, but he distinctly states it was too dark to see the letters on this manhole at the time of the happening of the accident

Neither is there any evidence to show that the accident happened through the carelessness of the defendant

It is undoubtedly true that where a thing that causes injury is shown to be under the management of the defendant, and the accident is one that in the ordinary course of events does not happen, it affords reasonable evidence that the accident arose from want of care. But this rule only applies to those cases where the want of care in the management of the thing would naturally result in the happening of an accident of the kind established. There is no evidence whatever in this case that any want of care on the part of the defendants would cause an explosion of this description. They were not dealing with an explosive material; there is nothing to show what caused the explosion ; neither is. there any evidence, as already stated, that the defendants were responsible for the existence of any explosive material in the manhole in question.

Our attention is called on the part of the plaintiff to various authorities, none of which have any application to the case at bar. In some of the cases there was a contractual relation existing between the parties as common carrier and passenger. Another case was one in which a building fell, and as buildings do not generally fall without negligence of somebody, it was held that it called for an explanation from the owner. In another case a heavy box fell while being hoisted in a hoist, the box having slipped, from its hooks, and it was held that defendant was called upon to show that precautions to hoist the box safely were used.

A case which more nearly comes to the one now under consideration seems to be the case of Cosulich v. Standard Oil Co., 14 N. Y. State Rep., 713. But in that case the damage arose from the explosion of a steam boiler in which the defendants were using an explosive substance which called upon them for the use of care and diligence to prevent injury from the use of this explosive substance; and the fact of the happening of the accident raised the presumption of negligence, otherwise the accident would not have happened, although even this conclusion may have been impaired by a recent elevated railroad decision.

In the case at bar, however, the appellant was using no explosive substance, as far as the evidence shows, and consequently were not charged with any particular care to prevent any such explosion.

The court may take judicial notice that gunpowder, dynamite, etc., produce serious explosions under certain conditions; and we presume that the court may also take judicial notice that electricity and air do not explode, and these seem to have been the substances which the defendants were using. It would seem, then, that some foreign substance must have been introduced into the subway in order that this explosion should be produced; and if such foreign substance had not been introduced in such manner as brought it to the knowledge of the defendants, then no duty in regard to it arose and they could not be guilty of negligence.

We think, therefore, that under all the circumstances of this case there was no proof whatever upon which the defendant could be held.

The judgment and order appealed from should be reversed and a new trial ordered; with costs to appellant to abide event.

Daniels and Brady, JJ., concur.