author: ADAMS, J.

text:
    John H. Wilson, App’lt, v. Fred. W. Webber et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Contracts—Promise for benefit of third party. '
    At common law, an obligation, to which a person is neither a party nor a privy, generally furnishes no protection or security to that person.
    3. Parties—Contractor’s bond.
    A bond given by a city contractor, which, after indemnifying the city for a faithful performance of the contract, is conditioned for the payment of claims for “ materials furnished in and about such improvement,” may, on breach thereof, be enforced by one who has supplied materials for the work, though he is not a party to the bond mentioned therein.
    3. Constitutional law—Powers of legislature.
    A statute, which requires a city contractor to furnish a bond conditioned for the payment of all claims for materials furnished in making an improvement, is constitutional.
    4. Principal and surety—Liability.
    Under a bond, which recites that, whereas the principal obligors have entered into a contract in which they have covenanted, “ among other things,” to grade a certain street, and then states in the condition what the other parts of the agreement are, the liability of the sureties must be ascertained by reference, not to the recital alone, but to the bond in its entirety.
    8. Same—Extension of credit.
    Such sureties are not released from liability merely because the material men, without additional security, allowed the contractor thirty days in which to pay for the materials furnished.

      Motion for a new trial on exceptions, ordered to be heard by the general term in the first instance.
    In 1893 the common council of the city of Lockport adopted an ordinance which provided for the grading, paving," and curbing of a portion of Miagara street, in that city, and advertised for proposals for the work. Thereafter the contract for such work was awarded to the defendants Whitmore & Sheldon, and the same was reduced to proper form, and duly executed by such firm and the city. Contemporaneously with the execution of the contract, and in pursuance of the requirements of section 207 of the city charter, the defendants Whitmore & Sheldon, as principals, and the defendants Webber & Trevor, as sureties, executed and delivered their bond to the city, which bond was subsequently ap-' proved by the mayor and filed in the city clerk’s office as required by law. This bond was conditioned, among other things, for the faithful performance of the contract by such principals, “ in accordance with the ordinance, plans, and specifications for said improvement,” and also that the defendants Whitmore & Sheldon should pay, or cause to be paid, the wages and compensation of all laborers who shall be employed in work on or about said improvement, whether employed by the parties of the second part, or any subcontractor or employe, and for all materials furnished in or about said improvement, whether to the parties of the second part, or to any subcontractor.” After the making of' the contract and the execution and delivery of the bond, the plaintiff sold and delivered to the defendants Whitemore & Sheldon 1,200 yards of sand, at the agreed price of $610, which sand was actually used in the construction of the work mentioned' in the contract, and was so sold upon the agreement of the purchasers to pay for the same within thirty days after its delivery, but only $110 of the purchase price was paid by them. The defendants Whitmore & Sheldon completed the work undertaken by them. The same was accepted by the city, and ninety-nine per cent, of the contract price was paid prior to the commencement of this action. The plaintiff• notified the defendants Webber and Trevor of the failure of Whitmore & Sheldon to pay the amount due him for the sand, and, within one year after the same was sold and delivered, demanded of them that they pay the balance of $500, which they refused to do, whereupon this action was brought. Upon the trial at the Miagara circuit, the plaintiff established the facts above stated, and rested his case, whereupon the defendants moved for a dismissal of the complaint, which motion was duly granted by the court.
    Tice & Vicarv, for pl’ff;
    W. H. & F. A. Ransom, for def’t Trevor;
    Edward C. Hart, for def’t Webber.
   ADAMS, J.

The learned trial to have dismissed the plaintiff’s complaint solely upon the ground that the bond upon which this action is brought furnished the plaintiff with no cause of action against the sureties, Webber and Trevor, who are the only parties defending. It is true that this instrument runs to the city, and that the plaintiff is neither a party to it nor mentioned in it; b.ut the action was brought, and is sought to be maintained, upon the theory that the bond nevertheless does indemnify him for the purchase price of the sand sold and delivered to Whitmore & Sheldon, the principal obligors. This contention must, of course, rest upon some legislative enactment, for it seems to be now settled that at common law an obligation to which a person is neither a party nor a privy generally furnishes no protection or security to that person. Gifford v. Corrigan, 117 N. Y. 257; 27 St. Rep. 233; Townsend v. Rackham, 143 N. Y. 516; 62 St. Rep. 851. From the evidence in this case, it appears that the charter of the city of Lockport.does contain a provision which requires that, before letting any contract for a public improvement, the contractor shall furnish a bond conditioned for the payment of all claims for “ materials furnished in and about such improvement.” Laws 1886, ch. 120, § 207. The parties to the bond, it will be observed, undertake to indemnify the city for a faithful fulfillment of the contract in accordance with its terms and provisions, but they go further then this, and agree, in language almost identical with that of the charter, that the contractor shall pay for all materials “furnished in and about said improvement”; and the important question which at once presents itself is, to whom do^ this particular indemnity run, and for whose benefit was it incorporated into the body of the instrument? The answer to this question depends entirely upon the construction to be given to the language of the bond. As has already been suggested, the instrument does, in general terms, run to the city; but why should it indemnify the city for materials which are not furnished by the municipality, and for which it could under no copceivable circumstances be compelled to pay ? It is true that what is termed the “ Municipal Lien Law ” furnishes material men with an easy method by which moneys due upon a contract for municipal improvements can be reached, and applied in payment of their claims. Laws 1878, ch. 315, § 1. But, in availing himself of its provisions, the material man does not prejudice the municipality, in any sense, and therefore it is difficult to see how the latter obtains any additional security or protection by having such a provision incorporated into the bond; and, if this be so, then the bond must be construed to mean precisely what it says, viz. that the obligors therein named shall pay, or caused to be paid, the vendors, and not the city, “ for all materials furnished in or about said improvement,” thereby furnishing the direct, indemnity to such vendors which is contemplated and required by the charter. And herein consists the vital distinction between this case and that of Cement Co. v. McNaughton, recently decided by this court, and reported in the New York Supplement (volume 35, p. 453).

Having reached the conclusion that the bond is sufficiently comprehensive to embrace the plaintiff’s claim, and that it is sanctioned by legislative enactment, it remains to be determined whether the legislature has exceeded its power, in its effort to furnish a remedy which had no existence at common law. So far as the city of Lockport is concerned, there can, of course, be no question as to the right and duty of the lawmaking department of the state to incorporate into the charter, which is its fundamental law, such provisions as will adequately protect the municipality itself, as a minor division of the state; but I think it may go much further than that, and provide a means by which the individual members of the municipality, and all other persons, may be protected in their rights. The very “ municipal lien law ” to which reference has already been made is an instance in point, where, to a certain class of men, is furnished an easy and inexpensive remedy for the recovery of their just claims, which was not available to them prior to its enactment, and the means provided by the Lockport charter is simply more direct and easy of attainment. Perhaps the most radical legislative innovation of common law rights is what is known as the “Civil Damage Act,” which creates a right of action never before heard of in this state; and yet the court of appeals had no difficulty in reaching the conclusion that its enact-: ment was a valid exercise in reaching the conclusion that the consideration of questions arising under that act, took occasion to say that:

“ The legislature .may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten responsibilty for injuries upon persons.against whom the common law gives no remedy.” Opinion per ANDREWS, J., in Bertholf v. O’Reilly, 74 N. Y. 509-524.

It would seem', therefore, that, when it incorporated the provisions of section 207 in the charter of the city of Lockport, the legislature not only did not transcend the limits of its authority, but that it provided an easy, suitable, and inexpensive method by which a certain class of creditors could obtain their pay of a party to whom a contract for city improvement had been awarded.

It is insisted, however, that, even if- the view here indicated be adopted as the law of this case, there can be no recovery, because no breach of the defendants' undertaking is alleged or proved; and in support of this claim the attention of the court is directed to the fact that the recital in the bond makes no reference to any covenant to pay for material,—the contention being that the recital contains the full measure of the specific engagement of the sureties, which cannot be extended by construction, and the case of Association v. Conkling, 90 N. Y. 116, is cited to sustain this contention. But this case, I think, hardly comes up to the defendants’ present requirements, as a little examination will make plain. Judge Earl, after stating in his opinion that he arrives at his conclusion with some doubt and hesitation, rests it upon the fact that the bond in question, which was conditioned for the faithful performance of the duties of bookkeeper by one of the obligors, simply recited that he had been appointed to the office of bookkeeper, and that he had accepted the office and consented to perform the duties thereof, while the alleged breach occurred after he had been promoted to the position of receiving teller, and says that the former position was the one which was brought to the attention of the sureties, and the one which they had in mind when they executed the bond. In other words, the undertaking was for the faithful performance of the duties of a specified office, and not for those of another and.more responsible one, and the case was therefore one where general words subsequently used should be controlled and limited by the recital. In the case under consideration, the recital stated that whereas the above-bounden Whitmore & Sheldon have entered into a contract with the city of Lockport, whereby they have, “ among other things, covenanted and agreed to grade, curb, and pave Niagara street,” etc., and then goes on to state in" the condition what the other parts of the agreement are. So it can hardly be said that the sureties were informed as to the full measure and. extent of their liability by a reference to the recital alone. To ascertain that, they were compelled to examine and give effect to the instrument in its entirety. The case is consequently brought within the principle of that of Fourth National Bank v. Spinney, 120 N. Y. 560; 31 St. Rep. 846.

But it is further urged that, inasmuch as the plaintiff sold his sand to the principle obligors upon a credit of thirty days, the sureties are released from any liability therefor, for the reason that no term of credit was embraced in their contract. It is unquestionably a well-settled rule of law that a surety is entitled to a somewhat rigid construction of his contract. But, before this rule is applied, his contract is subject to.the same construction as any other contract, in order to ascertain and give effect to the intent of the parties, and it is not until this is ascertained that its language is to be regarded as strictissimi juris. Belloni v. Freeborn, 68 N. Y. 383; People v. Backus, 117 id. 196; 27 St. Rep. 173. In attempting to discover the intention of the parties to the bond in suit, the circumstances surrounding its execution may be inquired into. These have already been, adverted to, and it is only necessary, by way of recapitulation, to suggest that, in the fulfillment of their contract, it was necessary that the principal obligors should employ laborers and purchase materials; and the sureties covenanted that the laborers employed, and the persons of whom the materials were purchased, should be paid,—not that they should be paid in any particular manner, or at any specified time, but that payment should be made in the usual and customary way. It does not appear ho'w the laborers were, by their contract of employment, to have been paid, but it is safe to assume that it was at the end of each week; and yet, if they were employed by the day, as they doubtless were, they became entitled to their pay at the close of each day, and deferring payment until the end of the week would, if the defendants’ contention is to obtain, be such an extension of "credit as would defeat any right of action upon the bond. If, ,in purchasing the sand in question, the vendees had given, and the plaintiff had accepted, their note for thirty days, I could see more force to the defendants’ argument, for in that case the plaintiff would have accepted a new and independent security, which would indicate that he elected not to rely upon that which was furnished by the bond ; but the deferring of payment for a few days seems more in the nature of an indulgence, rather than the extension of a credit not within the contemplation of'the contract. This question does not appear to have been pressed upon the attention of the trial court, and apparently it furnished no ground for the disposition made of the case at the circuit; but, inasmuch as it is now urged as a reason for sustaining the judgment of dismissal, due consideration has been given to it.

For the reasons stated, we think the learned trial justice erred in withdrawing the case from the jury, in consequence of which a new trial should be granted, with costs to abide the event. All concur.


source: Caselaw Access Project

author: BRADLEY, J.

license: Public Domain

text:
    Zeicha Sweet, Resp’t, v. City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Municipal cobfobations—Claims—Auditing.
    Sections 15 and 16, chapter 105 of 1891 (Buffalo City Charter), limit the time within which the common council can, for a defect in the verification, reject a claim, and, unless the objection is taken by the board within thirty days, it is not available for any purpose after the expiration of such time, and the form and verification will be deemed sufficient.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Charles F. Feldman, for app’lt;
    L. L. Lewis, Jr., for resp’t.
   BRADLEY, J.

The purpose of the action was to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. The evidence was sufficient to permit the court to submit the questions of negligence of the defendant and of contributory negligence of the plaintiff to the jury, and to support the verdict. The further question arises upon the provisions of the city charter that:

“ The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk, * * * and if for damages for wrong or injury when, where and how occasioned, and shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made and that no set off exists, except those stated.’’ Laws 1891, c. 105, § 15.

Also that:

“ No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days alter the claim shall have been filed with the city clerk for presentation to the common council for audit, in the manner and form aforesaid. * • * * IE the claim be not made out and verified as above required, the board of aldermen may within thirty days after its presentation refuse on that ground to audit it.’’ Laws 1891, c. 105, § 16.

The claim of the plaintiff was filed with the city clerk on April 18, 1893, and on the 22d day of May following the claim was denied by the board of aldermen on the ground that the affidavit of verification was defective. The claim was presented in the form of a petition, which contained all that was essential for such purpose. The affidavit annexed to it was “ that the said petition is true, and the whole thereof.” This was not a full compliance with the statute. As has been seen, the statute permits the board of aldermen on that ground to refuse within thirty days after the presentation of a claim to audit it. The filing of the claim with the city clerk was a presentation to the • board. Murphy v. City of Buffalo, 38 Hun, 49. The purpose of the statute evidently was to require adverse action of,the board, founded upon defects in an affidavit of verification within that time, so that the claimant might not be prejudiced by further delay in making another presentation of his claim supported by his corrected affidavit. It would seem that this provision of the statute limits the time within which the' board can, for such defect, reject a claim, and, .as the consequence, that unless the objection is taken by the board within the thirty days, it is not available for any purpose after the expiration of such time. This is a reasonable interpretation of the purpose of the statute in that respect, and, as the claim was not rejected within thirty days after its presentation, the defect in the affidavit is not tenable to defeat the action.

The judgment and order should be affirmed.

All concur.


text:
    Stanislaus Rutzkowski, Appl’t, v. William George, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Justice’s court—Execution—Return—Failure.
    Section 3039 of the Code does not give an action for damages for the default in returning an execution, but prescribes a penalty ; and a constable cannot, in mitigation of a recovery, prove that the defendant in the execution had no property subject to levy.

      2. Same.
    The amount of the execution, within the meaning of the statute, is that which remains unpaid to the justice or person entitled to it at the time the action founded upon the default was commenced.
    Appeal from a judgment of the county court, reversing a judgment of the justice’s court.
    Thomas H. Larkins, for appl’t;
    S. P. Fox, for resp’t.
   BRADLEY, J.

The recovery in the justice’s court against the was for his default, as constable, in not returning an execution within the time prescribed by the statue. The view of the county court was that the defendant should have been permitted to prove as a defense that the judgment debtor had no property subject to levy other than that seized and sold by the defendant on the execution, and that, therefore, it was error to exclude evidence offered tending to prove such fact. This is the rule applicable to sheriffs. From an early day the statute has provided that the action against the sheriff in such case is one for damages sustained by the judgment creditor by reason of the default (1 Rev. Laws, p. 423, § 10; 2 Rev. St. p. 440, § 77; Code Civ. Proc. § 102), and the'question whether the default is prejudicial to him is open to the sheriff in so far that he is permitted to prove in mitigation of damages that the debtor had no leviable property. Pardee v. Robertson, 6 Hill, 550; Ledyard v. Jones, 7 N. Y. 550. But that statute and the doctrine of those cases are not applicable to constables for default in returning executions issued to them. The Revised Statutes provided that, “ if a constable neglect to return an execution within five days after the return day thereof, the party in whose favor the same was issued, may maintain an action of debt against such constable, and shall recover therein the amount of the execution, with interest from the time of the rendition of judgment upon which the same was issued (2 Rev. St. p. 253, § 159); and that “ a constable shall not levy upon or sell any property * * * upon any execution, after the time limited therein for its return, unless such, execution shall have been renewed,” and then not after the time for which it shall have been renewed (Id. § 161.) The same provisions remain- effectual. Code Civ. Proc. §§ 3039, 3040. It may be observed that the constable is given five days to return an execution after the time his power to take any proceeding thereon has terminated. It is otherwise-with the sheriff. He may sell, after the expiration of the return day mentioned in the process, any personal property upon which he has previously levied an execution, and no formal act of levy upon real estate is essential for such purpose. The statute declaring the liability of constables and the extent of it is very clear in the terms, and permits, from the Consequences of the default, no relief by way of defense in the fact that the judgment debtor had no property subject to levy. The statute makes the amount of the execution the measure of liability. It is penal in its nature; and it should be enforced only in cases coming clearly with in its provisions. Hampton v. Boylan, 46 Hun, 152; 10 St. Rep. 788. There is but very little judicial authority on the subject of this statute. The proposition is merely stated in Sloan v. Case, 10 Wend. 370. Prior to 1857, the provisions of section 159 of the Revised Statutes, before referred to, were not applicable to constables in the city of New York. Brown v. Jones, 3 Abb. Prac. 80; 1 Hilt. 204. After the act of that year (chapter 344, § 57) its provisions were so distinguished from those of the Revised Statutes in that respect as to relieve them from the penal character of those of that section. Curry v. Farley, 8 Daly, 2.28. In Knapp v. Sweet, 24 N. Y. Supp. 817, the view of the court, as there expressed, was that the same right is allowable to mitigate damages by a constable liable in an action for default in returning an execution as is available to a sheriff as a defense. This would be so if the statute provided for the recovery of damages, but the provision that the party may recover against the constable “ the amount of the execution" has no qualification in the terms of the statute. In People v. Lucas, 93 N. Y. 585, this question was not presented or considered.

It is suggested that the justice erred in rendering judgment in excess of the amount which the plaintiff was entitled to recover. It is very likely that, if the attention of the justice had been specifically called to the fact that the costs of the justice in the judgment upon which the execution was issued had been paid by the defendant, the recovery would, as it should, have been $21.81 instead of $23.97. The amount of the execution, within the meaning of the statute, is that which remains unpaid to the justice or person entitled to it at the time the action founded upon the default is commenced. As the judgment was reversed by the county court on the question hereinbefore mentioned, the matter of the excess had there no consideration. The correction, however, may here be made, by deducting the $2.16 from the recovery as of the time of the entry of the justice’s judgment appealed from. Code, § 3063; Weed v. Lee, 50 Barb. 354; Fields v. Moul, 15 Abb. Prac. 6.

The action was originally commenced against George, the constable, and Naetzker and Secular, bis sureties on his official bond. The justice dismissed the complaint as to those sureties. On the appeal by the plaintiff, the judgment of dismissal was reversed by the county court, with costs; and that court directed that the costs against them should be set off against the costs there recovered by the defendant against the plaintiff. He, in his notice of appeal to this court, expressed hjs intent to review that order. The reversal of the judgment against the plaintiff necessarily renders such order ineffectual. The remedy sought against the constable is somewhat severe under the circumstances of thecase, and in view of the modification, the plaintiff, we think, should not have costs of the appeal to this court against him.

The judgment of the .county court in favor of the defendant George should be reversed, and that of the justice’s court against him, reduced $2.16, should be affirmed, with costs in the county court, and without costs of this appeal; and the order of the county court directing that the costs recovered by the plaintiff agáinst Naetzker and Secular be set off against those recovered by the defendant George against him should be reversed, without further costs.

All concur.


text:
    William W. Armstrong, as Receiver, etc., Resp’t, v. Hector McLean, App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 28, 1895.)

    1. Debtor and creditor—Marshaling securities.
    A creditor, holding several claims secured by a general mortgage, can-be compelled by the other creditors to apply the proceeds thereof pro rata.

      Same—Receives.
    A creditor, who has a surplus of security on some claims and a deficiency on others, is entitled to share in the surplus with the receiver for other creditors.
    Appeal from a judgment in favor of plaintiff.
    Cassius C. Davy, for app’lt;
    J. E. Durand, for resp’t.
   BRADLEY, J.

In proceedings supplementary to executions issued on several judgments, amounting to upward of $5,000, against George Riley, the plaintiff was appointed receiver of his property. The purpose of this action was to require the defendant to turn over to the plaintiff certain land contracts and a bond and mortgage assigned by Riley to the defendant, to secure the payment of a certain indebtedness of Riley to the defendant of $3,636.41, or the proceeds of such securities in excess of the amount remaining unpaid of such indebtedness. The nominal value of those securities was $8,300. The trial court found that the amount of that particular indebtedness had been reduced to $2,012.02 by the application which had been made thereon, by operation of law, from the proceeds of a judicial sale of real property on foreclosure x>f mortgages given by Riley to secure all his indebtedness to the defendant, amounting to upward of $40,000. The foreclosure by action of those mortgages of Riley to the defendant resulted in net proceeds of $19,411.36, and in a deficiency of $21,520.20, for which judgment was perfected in favor of the defendant against Riley. Those proceeds of the sale in that foreclosure action constituted 47.42 per cent, of the total amount of the indebtedness of Riley to McLean, as found by the court; and the application therefrom of that percentage on the amount of that particular debt mentioned of $3,636.41, with interest upon it, would reduce the debt to $2,012.02; and, as the defendant had received from some of those securities an amount in excess of the last-mentioned sum, judgment was directed that the defendant pay to the plaintiff such excess, and hand over to him the residue of the securities so taken by the defendant for th'e payment of such debt. Treating the mortgages foreclosed by the defendant’s action as security for the payment of all the indebtedness of Riley to him, the'other creditors of Riley could insist that the net proceeds of the sale should be applied pro rata on the several debts the payment of which the mortgages were intended to secure. This, upon recognized equitable principles, is the general rule applicable to such cases, although it has no application to voluntary payments. And, since such proposition must be deemed settled by judicial authority in this state, the reasons upon which it is founded need no special consideration on this review. Bridenbecker v. Lowell, 32 Barb. 9; Orleans County Nat. Bank v. Moore, 112 N. Y. 543; 21 St. Rep. 609. It is therefore assumed that the debt of $3,636.41 was. by the legal application upon it of sufficient of the proceeds ■of the mortgage foreclosure sale, reduced to $2,012.02; but it ■does not follow that the plaintiff was entitled to the entire excess of that sum in the amount of the securities and their proceeds which, the defendant had taken on account of that debt It has been observed that the defendant had a judgment of upward of $20,000 for deficiency against Riley. He was a judgment creditor of Riley to that extent. No reason appears why he, as such judgment creditor, should not beneficially share with the creditors represented by the plaintiff in the amount of such excess. His relation of judgment creditor places him in the same relation to it us that which they have through the receiver, and his equities are •equal to theirs for aught that appears by the record here. It would seem to follow that, on'the principle before referred to, such •excess should be applied pro rata on the judgments upon which •the plaintiff’s claim is founded, and that which the defendant recovered against Riley as to the amount of it remaining unpaid.

■There is some evidence tending to prove that the defendant’s judgment may have been reduced about $10,000 by the application of the surplus resulting from the foreclosure of a prior mortgage upon some of the property covered by one of the mortgages which was foreclosed in his action. Whatever the fact is in that respect may be made to appear on another trial. The view taken is that, upon the evidence undisputed, the plaintiff was not entitled to take from the defendant the entire amount of the securities first above mentioned in excess of that remaining unpaid upon the debt they were taken by the defendant to secure, but that, because the defendant was also a judgment creditor of Riley, he, having them, was entitled to share pro rata with the plointiff in ■the amount of such excess.

The judgment should therefore be reversed, and a new trial granted; costs of this appeal to abide the final award of costs.

All concur.


text:
    Harriet M. S. Hutchinson, Resp’t, v. City of Rochester et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Taxes—Rochester—Special assessment.
    Section 209, chapter 14 of 1889 (Rochester City Oharter), does not make unpaid special assessments for the preceding year a lien on lands of the owner, or authorize the treasurer to refuse to receive and receipt for the taxes on such lands, unless the special assessment is also paid.
    .3. Municipal corporations—Claim.
    A demand that a city treasurer shall receive the tax on certain property without requiring, as a condition, payment of an unpaid special assessment for the preceding year, is not a “claim” against the city, which must be presented to the common council for audit before an action can be brought thereon.
    Appeal from a judgment rendered in favor of plaintiff.
    Eugene J. Dwyer, for app’lts;
    John H. Hopkins, for resp’t.
   BRADLEY, J.

In 1891 a certain parcel of land known as-“Warwick Avenue,” then owned by the plaintiff, was assessed $174.79, for improvement on Chili avenue, in the city of Rochester. In 1893 the plaintiff was assessed for a general city tax $138.94, upon her other premises, described in the complaint, and known as lot No. 12 in the city; and the assessment of 1891,. made as before mentioned, on Warwick avenue, not having been paid, was inserted in the general city tax roll of 1893. For some reason which does not appear in the record here, the plaintiff claims that she is not chargeable with that assessment, and she alleges that the city seeks to treat it as a charge upon her lot No. 12, and threatens to sell that lot for that assessment inserted in such rt.ll, as well as for such other tax. The plaintiff, having, tendered the amount of the latter tax to the city treasurer, and, on his refusal to accept it, paid the money into court, brings this action to requi.re the city treasurer to receive the money so paid into court, in payment of the tax to pay which it was tendered, and for the determination by the court that the amount of the assessment so made upon Warwick avenue, and inserted in the general city tax roll, is not a charge upon her lot No. 12. This relief was given by the judgment.

It is not seriously contended by the defendants’ counsel that the amount of such assessment of Warwick avenue became a lien upon the lot No. 12; but it is insisted that it was properly inserted in the general city tax roll, that thereupon the plaintiff became personally liable to pay it, and that the treasurer was not required to accept the payment of the other tax without the payment of that also. The city charter provides that when a warrant shall have been issued for the collection of an assessment, and returned unsatisfied, the assessor's, in preparing the next roll for general city taxes, shall insert therein, against the property on which it was assessed, the amount of such unpaid assessment; that, “such amount shall be in a separate column from the general city tax to be levied for the ensuing year. Laws 1880, chap. 14, § 209. It is also provides that the assessments made in the manner prescribed shall create a personal obligation or liability of the owner of the land assessed to pay the city the amount of it, and that, for its collection, an action may. be maintained by the city, Id. § 206. The amount of the assessment was on the roll in a column distinct from the tax, and no good reason appears for denial to the plaintiff of the right to pay either without including the other in the amount paid. It may be assumed that both could be united in an action for recovery against the plaintiff personally; -yet the assessment was not a charge on any other than the land embraced within it. The charter provides that, in the-event-there mentioned, the city treasurer may cause to be sold real estate charged with any tax or assessment. Id. § 94. The purpose of the plaintiff in tendering payment of the tax was to relieve her lot No. 12 from the charge of it. This could not in any legal sense prejudice the city. It had the same right, if the assessment was valid, to charge the plaintiff personally for it, or, so far as appears, proceed to sell the land assessed by it. The assessment and tax are not analogous to different items of a single debt, nor is there any support for the condition which renders relief from one by its payment dependent upon the payment of both of them. The tender was sufficient in amount, and effectual to entitle the plaintiff to relief from the tax. The matter set up in the answer is not available as a counterclaim in the action. Code Civ. Proc. § 501; Society v. Cuyler, 75 N. Y. 511.

It is urged on the part of the defendants, that the purpose of the action comes within the provision of the city charter, which requires that a claim, debt, or demand, shall have been presented to the common council, for audit, forty days before an action against the city to recover or enforce it is permitted. Laws 1890, chap. 561, § 18. The subject of this action is not a “claim” against the city in the ordinary sense of the term, nor is there anything for the common council to audit. The plaintiff alleges no claim against the city. She merely asserts the right to pay its treasurer the amount of "a tax without including in the payment an assessment, and seeks to have defendants required to recognize such alleged right, and receive for such purpose the money tendered to pay it. This constitutes no “ claim” against the city in the common acceptance of that term; and therefore this action does not come within the fair meaning or import of the provision last mentioned of the city charter. Nor are the cases cited by counsel applicable to-the purpose of the action.

The judgment should be affirmed.

All concur.


author: VAN BRUNT, P. J.

text:
    Edwin K. Wiggins, by Guardian, etc., Resp’t, v. John King et al., as Receivers, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895. )
    1. Carriers—Rules.
    A railroad company has the right to make reasonable regulations in respect to the method by which a passenger may assert to the employes of the company his right to be a passenger upon any particular train.
    3. Same—Ejectment—Passenger.
    Where a passenger buys an excursion ticket containing a return coupon, and the conductor of the outgoing train takes up the return coupon, the passenger cannot recover in an action for an assault for the wrongful act of the conductor of the outgoing train in taking up the wrong portion of the ticket.
    3. Same.
    Unless the passenger, in ignorance of the mistake of the outgoing conductor, which mistake he could not by using ordinary diligence have discovered, entered upon the returning train, his erroneous ticket presents no bar to the right of the conductor to eject him.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    F. B. Jennings, for app’lts;
    S. Ashton, for resp’t.
   VAN BRUNT, P. J.

It is to be noticed, in the consideration of -the case at bar, that the respondent prefixes to his points long statement of facts, without a single reference to the testimony contained in the case supporting such statement, except one at the end thereof, which is entirely immaterial to the questions involved in this appeal. We might very well, under the requirements of the general rules of practice, refuse to consider any portion of such a statement, the more particularly as the same contains allegations of fact which we cannot find to be supported by any testimony. - The facts of the case seem to be that the father of the plaintiff on the 10th of September, 1894, purchased at. Jersey City an excursion ticket from Jersey City to Warren Point, the return coupon being for transportation from Warren Point to Jersey City. The plaintiff claims that in going from Warren Point to Jersey City the conductor took up the main coupon, entitling him to ride from Jersey City to W¡arren Point. The next day, on his return journey, another conductor refused to accept the return coupon, reading from Warren Point to Jersey City, upon the ground that it did not entitle the plaintiff to ride in the opposite direction, and he was required to leave the train. This action was brought for an assault, in putting the plaintiff off 'the train ; he claiming to have been compelled to walk a considerable distance tó his home, and to have become sick because thereof. A recovery having been had in favor of the plaintiff, and an order having been entered denying the motion for a new trial, from such judgment and order this appeal is taken.

‘ In the plaintiff’s statement of the case, is alleged that the plaintiff did not discover the fact that the conductor of the train from Warren Point to Jersey City had taken the wrong part of the ticket until he became and was a passenger on the defendant’s train on his return from Jersey City to Warren Point, upon the presentation of this ticket to the conductor, which the conductor refused to receive. We have examined the case with care, to find any evidence whatever to support this proposition. It is needless to cite authorities for the proposition that a railroad company has the right to make reasonable regulations in respect to the method by which a passenger may assert to the employes of the company his right to be a passenger upon any particular train. The possession and exhibition, upon reasonable demand, of a ticket assuring this right, has been held to be such a reasonable regulation. It is also equally clear that the plaintiff cannot recover in this action for the wrongful act of the canductor upon the train from Warren Point to Jersey City in taking up the wrong portion of the ticket. It ts equally well settled that unless the plaintiff, in ignorance of the mistake of the previous conductor which mistake he could not by using ordinary diligence have. discovered, entered upon the train going from Jersey City to Warren Point, his erroneous ticket presented no bar to the right of the conductor to eject. In the case of Muckle v. Rochester Railway Co., 79 Hun, 32; 61 St. Rep. 193, the right of recovery was based upon the fact that the holder of the transfer ticket could not understand the marks upon the ticket, showing the limitation of -time within which it could be used. In the case of Hibbard v. Railroad, 15 N. Y. 455, which -is referred to with approval in tne case of Townsend v. Railroad Co., 56 N. Y. 295, the rule is laid down, in a case where a party claimed that his ticket was taken up by a conductor on a previous train before he had completed the journey wnich the ticket entitled him to ride, that—

“ For the wrongful act in taking his ticket he has a complete remedy against the company. The conductor of the train upon which he was, was not bound to take his word that he had a ticket showing his right to a passage to Rhinebeck, which had been taken up by the conductor of the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to enforce the regulation, as was rightly held by the trial judge, by putting the plaintiff off, in case he persistently refused to pay fare.”

It would seem, therefore, under the condition of the proof at the termination of the trial of the case at bar, that no case was made out, as against the defendant, and the complaint should have been dismissed.

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

All concur.


author: PER CURIAM.

text:
    The People ex rel. George Edwards, App’lt, v. Abraham Tappan et al., as Commissioners, Resp’ts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Municipal corporations—Police—Dismissal.
    The dismissal of a park policeman, for leaving his post will be confirmed; though he may have had a valid excuse therefor, where no excuse or explanation is given by him why he has not complied with the rule in this particular which, in such case, made it his duty to call on, and temporarily resign his duty to, some other member of the force.
    2. Same—Appeal.
    Where the conviction rests upon sufficient evidence, the appellate court cannot reverse the proceeding for the sole reason that, in its judgment, a less severe punishment should have been inflicted.
    Certiorari to review the action of the board of park commissioners of the city of Hew York, in removing relator from the police force after trial on a charge of having been off his duty.
    Louis J. Grant, for relator;
    Francis M. Scott (Terence Farley, of counsel), for resp’ts.
   PER CURIAM.

The relator was duly tried and convicted upon a charge of having been off from his post, and thereupon dismissed from the police force of the park department. Upon his trial he admitted that, when found by his superior officer, he was’four blocks away from his post, but claimed that he had left his post to attend a call of nature. There was some evidence which cast doubt upon the sincerity of the claim, but, assuming the truth of the relator’s statement, he was still guilty of a violation of the rule of the department, which in such a case made it his duty to call on, and temporarily resign his duty to, some other member of the force. No excuse or explanation was given by him why he had not complied with the rule in this particular. The conviction therefore rests upon sufficient evidence, and, that being so, we cannot reverse the proceeding for the sole reason that in our judgment a less severe punishment should have been inflicted. The determination^ the board of commissioners must be confirmed, with $50 costs and disbursements.


author: FREEDMAN, J.

text:
    Michael F. Burns, as Administrator, etc., Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Appeal—Harmless error.
    A defendant in an action for death by wrongful act, is not prejudiced by an amendment of the complaint, permitting plaintiff to increase his demand for damages,°where the verdict" of the jury does not exceed the former limitation.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial. •
    Henry A. Robinson, for app’lt;
    William Sulzer, for resp’t.
   FREEDMAN, J.

Although it has been decided by the court of appeals that the constitutional provision that the amount recoverable in an action for damages for injuries resulting in death shall not be subject to any statutory limitation does not operate retrospectively, and does not affect causes of action accrued before the said constitutional provision went into effect, the defendant in the case at bar was not prejudiced by the amendment permitting the plaintiff to increase the demand for damages from $5,000 to $25,000, as the verdict of the jury did not exceed the limit of $5,000. Upon a careful review of the whole case, it clearly appears that the case was one for the jury, both upon the question of negligence and the question of contributory negligence; that no error was committed in the admission of evidence, or in refusing to dismiss the complaint; and that the verdict is not against the evidence, or against the weight of the evidence. Moreover, the verdict should not be disturbed as excessive.

The judgment and order should be affirmed, with costs.

All concur.

Memoranda of cases in which, no opinions were written


text:
    Acker, Edgar & Co., Resp’t, v. Pauline S. Deutsch, App’lt.
    Sup. Ct. 2 D.,
    February 18, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    William Allen v. Tarrant et al.

    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Motion denied with §10 costs.


text:
    Mary H. Archibald, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
    Sup. Ct. 2 D.,
    February 18, 1896.
   No opinion. Motion to modify order affirming judgment granted, without costs.


text:
    Henry A. Armstead, App’lt, v. J. B. Brewster et al., Resp'ts.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    William W. Armstrong v. Hector McLean et al.

    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion denied. Adams, J., not sitting.


text:
    Samuel Bachrach, Resp’t, v. Manhattan El. Ry. Co., App’lt.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Frank B. Bagley, Resp’t, v. Edwin J. Story, App’lt.
    Sup. Ct. 3 D.,
    February 3, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Elizabeth Baldwin, App’lt, v. William Henry Smith, Resp’t.
    Sup. Ct. 2 D.,
    February 11, 1896.
   No opinion. Motion to dismiss appeal from order granted, with §10 costs.


text:
    Bank of British North America, Resp’t, v. William L. Boyle.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Bank of Ellicottville, Resp’t. v. Caroline C. Grimes, App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Order affirmed, witli §10 costs and disbursements.


text:
    Bank of Port Jefferson v. Charles F. Darling et al.

    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Motion denied, without costs.


author: McCARTHY, J.

text:
    Mary C. Bernard, Resp’t, v. United Life Ins. Ass’n, App’lt.
    N. Y. C. C.,
    January 28, 1896.

      Harry Wilber, for app’lt;

      Lyman W. Redington, for resp’t.
   McCARTHY, J.

We must follow the law as laid down by the appellate court, affirmed, with costs. Bernard v. Association, 12 Misc. Rep. 10.


text:
    Berwind-White Coal Mining Co., App’lt, v. George S. Ewart, Resp’t.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Leave granted to appeal to the court of appeals on the ground that a question of law is involved which onglit to be reviewed by that court.


text:
    De Witt C. Bouker v. Long Island Railroad Company.
    Sup. Ct. 2 D.,
    July 26, 1896.
   No opinion. Judgment affirmed, witli costs. All concur.


text:
    James E. Boyer et al., Resp’ts, v. Henry East et. al., App’lts.
    Sup. Ct. 4 D.,
    February 7, 1896
   No opinion. Order affirmed, with $10 costs and disbursements. WARD, J., not sitting.


text:
    Helen S. Bridge, Resp’t, v. National Life Association, App’lt.
    Sup. Ct. 3 D.,
    February 5, 1896.
   No opinion. Judgment affirmed, with costs. See 33 N. Y. Supp. 553.


text:
    Carrie Archer Brink, Resp’t, v. Reliance Ins. Co. of Philadelphia, App’lt.
    Sup. Ct. 2 D.,
    February 18, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Emanuel Bruner, App’lt, v. Amsterdam Street Railway Company.
    Sup. Ct. 3 D.,
    February 3, 1896.
   No opinion. Judgment affirmed, with costs.


author: McCARTRY, J.

text:
    Henry T. Buell, v. Frank C. Hollins.
    N. Y. C. C.,
    February 7. 1896.
    Perkins & Jackson, for app’lt;
    Niles & Johnson, for resp’t.
   McCARTRY, J.

Order affirmed, with costs.


text:
    Buffalo Savings Bank, Resp’t, v. Newton C. Mason, App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Arthur Burgin v. Howard Fleming.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Joseph Campbell et al. v. New York Life Insurance Company.
    Sup. Ct. 1 D.,
    February 7, 1896.
   No opinion. Motion denied.


text:
    In re Frederick Cappel.
    Sup. Ct. 2 D,
    February 18, 1896.
   No opinion. Order affirmed on authoiity of In re Hall, 85 Hun, 630. All concur.


author: VAN WYCK, C. J.

text:
    Carter-Rice Company, Resp’t, v. John Howard, App’lt.
    N. Y. C. C.,
    February 7, 1896.
    D. A. Spellissey, for app’lt;
    H. A. Sperry, for resp’t.
   VAN WYCK, C. J.

The plaintiff is the payee of the note sued upon, and defendant indorsed it for the maker before its delivery to plaintiff. The common pleas has held in this case that the statements made to and by the defendant when be indorsed the note were sufficient to overcome the legal presumption, from the irregular indorsement itself, that the irregular indorser was only liable as second indorser. The proof of the statements to and by the defendant at the time of the indorsement were substantially the same on both trials. The disputed questions of fact were submitted to the jury without objection or exception by defendant to the judge’s charge. The judgment and order are affirmed, with costs. All concur.


text:
    P. Howard Catlin, Resp’t, v. Josephine Rundle, App’lt.
    Sup. Ct. 3 D.,
    January 27, 1896.
   No opinion. Motion for an order remitting to the trial court the record herein for correction and amendment denied, without costs,


text:
    Challenge Corn Planter Company, Resp’t, v. Frank Diel, App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion denied.


text:
    Lewis W. Chapman, Resp’t, v. Alta Moses et al., App’lts.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment of the county court affirmed, with costs.


text:
    Cheshire White Quarz Sand Co., Resp’t, v. Adolph Demuth, App’lt.
    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except CULLEN, J., not silting.


text:
    Henry E. Cleveland, App’lt. v. Staten Island Sav. Bank, Resp’t.
    Sup. Ct. 2 D.,
    February 18, 1896.
   No opinion. Judgment affirmed, with costs. All concur, except CULLEN, not sitting.


text:
    In re Conner.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Motion denied.


text:
    Charlotte A. Conselyea, App’lt, v. American Legion of Honor, Resp’t.
    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Two members of this court being disqualified, to sit in this case, it is transferred to the first department.


text:
    Charles W. Cool, App’lt, v. Francis D. Terhune, Resp’t.
    Sup. Ct. 3 D.,
    February 3, 1896.
   No opinion. Motion for a reargument, or for leave to go to the court of appeals, denied, with $10 costs and disbursements.


text:
    Margaret Crogan, Resp’t, v. United States Industrial Ins. Co., App’lt.
    Sup. Ct. 3 D.,
    January 27, 1896.
   No opinion. Motion for a resettlement of an order granting leave to go to the court of appeals made by the general term of the Third Department on the 2dth day of December, 1895. Motion granted, and order settled.


text:
    Oscar B. Davis, Resp’t, v. Hilton Bridge Const. Co., App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Robert Dietzel, App’lt, v. Herman Weber et al., Resp’ts.
    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Judgment affirmed, with costs. All concur, except BARTLETT, J., not sitting.


text:
    Mary A. Donahue, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion denied.


text:
    Anna Doughty, App’lt, v. Adelbert W. Boynton Resp’t.
    Sup. Ct. 3 D.,
    January 27, 1896.
   No opinion. Judgment of the county court and of the justice affirmed, with costs.


text:
    Noah W. Elliot et al., Resp'ts, v. Niagara Cycle Fittings Co., App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Order modified by striking out that portion which directs that the cause he put upon the trial term calendar of the supreme court" and, as modified, affirmed, without costs to either party.


text:
    Nicholas Espenscheid, App’lt, v. Frederick Espenscheid et al., Resp’ts.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment affirmed, with costs. ADAMS, J., not'sitting.


text:
    Fall Brook Co., App’lt, v. Robert C. Hewson, Resp't.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion denied.


text:
    Farmers’ Nat. Bank of Annapolis v. William A. Underwood.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Motion denied.


text:
    John S. Ferguson, Resp’t, v. Henry Zeltner et al., App'lts.
    N. Y. C. C. G. T.,
    March 16, 1896.
    Appeal from an order made below.
    Mortimer Stiefel, for app’lts;
    R. Burham, for resp’t.
   PER CURIAM.

Order affirmed, with costs.


text:
    Edward Fitzgerald v. Mayor, etc., of City of New York.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Margaret Fitzgibbons v. National Steamship Co.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion denied.


text:
    German-American Bank, App’lt, v. Emma Slade et al., Resp’ts.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion denied, without costs.


text:
    Therese Graham, Resp’t, v. John Graham, App’lt.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Judgment modified by reducing amount of alimony to $2,750, and, as modified, affirmed, without costs.


text:
    James F. Guilfoyle v. Catharine E. Pierce.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Motion denied upon payment of $10 costs.


text:
    Charles L. Halstead, App’lt, v. Sarah B. Halstead, Resp’t.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. .Order affirmed, with $10 costs and disbursements.


text:
    Bridget Hare, Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Judgment modified by' reducing fee damage to $3,000 and rental damage to $300 a year, and, as so modified, affirmed, without costs.


text:
    George Hayes v. Linbomir R. Mestaniz.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    Thomas Hays, Resp’t. v. Mary Brown, App’lt.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Phœba E. Henderson, Resp’t, v. Carolina I. Hadden et al., App’lts.
    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Judgment affirmed, with costs. All concur, except BARTLETT, J.,'not sitting.


text:
    Hanna Henning, Resp’t, v. Cordelia E. Yvelin, App’lt.
    Sup. Ct. 2 D.,
    February 11, 1896.
   No opinion. Judgment and order reversed, and new trial ordered, with costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to $413.67. If such stipulation is filed, the judgment and order is affirmed, without costs. All concur, except CULLEN, J., not sitting.


text:
    Henry C. Hopkins v. James F. A. Clark.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted.


author: BOTTY, J.

text:
    Isabella Horowitz, Resp’t, v. Hamburg-American Packet Co., App’lt.
    N. Y. C. C.,
    January 28, 1896.
    Julius J. Frank, for app’lt;
    Mashbir & Cukor, for resp’t.
   BOTTY, J.

On the 28th day of August, 1892, the- plaintiff was a passenger on the steamship Augusta Victoria, owned and operated by the defendant, then en route from Hamburg, Germany, to the city of Hew York. The defendant’s seamen, while the ship was coming up the by, carried the passengers baggage from the state-rooms of the first cabin to the deck, and piled the same up against the deckhouse, in order to hasten the unloading thereof as soon as the ship reached the dock. The plaintiff, a passenger, was up on the deck, and a piece of-this baggage fell from the pile, and it is for damages sustained by reason of the injuries received by the falling of this baggage upon her that this action was brought. The issue was whether this particular lot of baggage was so piled up as to justify the jury in finding that the falling of a package thereof was due to the negligent manner of so storing the same. The proof is such that the jury could fairly conclude that the accident was caused by the defendant’s negligence and absence of contributory negligence on the part of the plaintiff. The defendant’s counsel made thirty seven requests to charge .the jury and, although one or two which were refused might have been charged without error against the plaintiff, yet the charge was so ftill and complete, covering all questions of law directly involved in this trial, that it was not error to refuse to charge these. Judgment and order appealed from affirmed, with costs. All concur.


text:
    Ann Huber, Resp’t, v. Joseph Seeman et al., App’lts.
    Sup. Ct. 3 D.,
    February 5, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    James H. Hummel v. Isaac Stern et al.
    Sup. Ct. 1 D.,
    February 7, 1896.
   No opinion. Motion for reargument denied, with $10 costs and'disbursements.


text:
    William T. Innes, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Judgment modified by reducing fee damage to $3,500. the rental damage to the old building to $150 per year from February 21, 1885, to March 31, 1889, and the rental damage to the new building to $250 per year from October 15, 1889, to April 24, 1895. As so modified, judgment affirmed, without costs to either party.


text:
    William Jay et al. v. William G. Wilson.
    Sup. Ct. 1 D.,
    February 7, 1896.
   No opinion. Motion for reargument deuied; leave to go to the court of ap« peals granted.


text:
    Aaron Kahn v. William M. Hoes et al.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    James P. Kernochan v. Umbrella Co.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    George T. King v. Charles Waite.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    Eaton Kinney et al., App'lts, v. Wallace W. Byrns, Resp’t.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment affirmed, with costs. WARD, J., not voting.


text:
    Kate Lawlor v. Thomas H. French.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    Henry W. Lawton, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Leibinger & Oehm Brewing Co., Resp’t, v. Frederick H. Ernst, App’lt.
    Sup. Ct. 2 D.,
    February 4, 1896.
   No opinion. Motion for reargument denied, with §10 costs.


text:
    Mary Lent v. Mayor, etc., of City of New York.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion granted, wilh §10 costs.


text:
    Isaac Levy v. Adolhh Bernhard.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion denied, with §10 costs.


author: CONLAN, J.

text:
    Thomas S. McCall, Resp’t, v. Emma L. Jacquelin, App’lt.
    N. Y. C. C.,
    January 28,1896.
    Redfield & Redfield, for app’lt;
    Michael H. Curren, for resp’t.
   CONLAN, J.

The order for substituted service was properly made, and the requirements of the Code obs'Tved. Motion to vacate was properly denied. Order appealed from affimed, with costs. All concur.


text:
    John McGill, App’lt, v. Union Electric Railway Company of Saratoga Springs, Resp’t.
    Sup. Ct. 3 D.,
    February 5, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Everett MacKinstry, Resp’t, v. Emma Coudet Smith, App’lt.
    N. Y. C. C.,
    January 28, 1896.
    Alexander Thain, for app’lt;
    Leonidas Dennis, for resp’t.
   PER CURIAM.

Judgment affirmed, wilh costs.


text:
    Adela McNish, Resp’t, v. Village of Peekskill, App’lt.
    Sup. Ct. 2 D.,
    February 18, 1896.
   No opinion. Motion for reargument denied, without costs.


text:
    Mary A. McQuillan, Resp’t, v. Robert Rogers, App’lt.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Ellen J. Mitchell, Resp’t, v. John McGean et. al., App’lts.
    Sup. Ct. 4 D.,
    February 7, 1891.
   No opinion. Order affirmed, wilh §10 costs and disbursements. WARD, J., not sitting.


text:
    William F. Mullen et al., Resp’t, v. Charlotte Shoe Company, App’t.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Order affirmed, wilh §10 costs and disbursements.


text:
    In re Holmes K. Nelson, Justice of the Peace.
    Sup. Ct. 3 D.,
    January 27, 1896.
   No opinion. Application for the removal of Holmes K. Nelson, a justice of the peace, for reasons stated in the petition filed. Motion granted; order therefor to be settled by Justice HERRICK, and entered.


text:
    Joseph Newman, App’lt, v. Ephraim B. Levy, App’lt (John Lanzer, Resp’t.)
    Sup. Ct. 3 D.,
    February 4, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur, except BARTLETT, J., 'not sitting.


text:
    In re William Odell’s Estate.
    Sup. Ct. 3 D.,
    February 18, 1896.
   Final accounting of the testamentary trustees of the estate of William Odell, deceased, of the trust funds in their hands belonging to the infant, Edith Odell. No opinion. Appeal dismissed, without costs. All concur.


text:
    In re Oneida Street (Syracuse, B. & N. Y. R. Co., App’lt.).
    Sup. Ct. 4 D.,
    February 7. 1896.
   Proceeding for the opening o.f Oneida street in the city of- Syracuse. From an order refusing an adjournment the Syracuse, Binghamton & New York Railroad Company appeals. No opinion. Order reversed as to appellant, without costs to either party. Held, that the county court erred in refusing an adjournment to enable the appellant to be heard and present its grounds of objection to the proceedings. '


text:
    Benjamin F. Parrish, App’lt, v. Richard K. Fox, Resp’t.
    Sup. Ct. 1 D.,
    February 7, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements, on opinion in Davis v. Fox.


text:
    People, App’lt, v. Albín Gerber, Resd’t.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Motion for reargument denied. Motion for leave to appeal to the court of appeals denied.


text:
    People ex rel. Annie Dunnigan v. Charles A. Webster.
    Sup. Ct. 3 D.,
    January 27, 1896.
   No opinion. Order affirmed.


author: DYKMAN, J.

text:
    People ex rel. Edward M. Goring v. Trustees of Wappinger’s Falls.
    Sup. Ct. 2 D.,
    December 27, 1895.
    A motion for an assessment of damages against defendant was denied, and relator appeals.
   DYKMAN, J.

This is an appeal from an order denying the application of the relator for an assessment of damages in the mandamus proceeding instituted by him against the defendant. The appeal is destitute of merit, and the order should be affirmed on the opinion delivered by the judge who made the order, with $10 costs and disbursements. All concur.


text:
    People ex rel. James A. Macauley, App’lt, v. Joan McClave et al., as Commissioners, Resp’ts.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinien. Proceedings affirmed, and writ dismissed, with $50 costs and disbursements.


text:
    People ex rel. Nate Meeker, App’lt, v. Charles R. Wright, Resp’t.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Order affirmed.


text:
    Jacob Pfeiffer v. John Rheinerank.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Motion denied.


text:
    Charles C. Pitthauer, Resp’t, v. John J. McDonnell, App’lt.
    Sup. Ct. 1 D.,
    February 14, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Flora Pohalshi, Abb’lt, v. James Ertheiler et al.. Resp’ts.
    N. Y. C. C.,
    January 28, 1896.
    S. L. Samuels, for app’lt;
    Otto Irving Wise, for resp’t.
   McCARTHY, J.

We have examined this case very carefully. There seems to have been some misunderstanding as to whether or not the plaintiff waives the introduction of evidence of the affidavit and warrant of attachment under Which the levy was made and under which the defendants justified. In order that justice may be done, and that an application may be made to the next general term to correct the same, we think it fair and proper to direct a reargument, when the whole case can be presented and argued. So ordered.


author: PER DURIAM.

text:
    Aarox T. Polhemus, App’lt, v. Spencer Aldrich, et al., Resp’ts.
    Sup. Ct. 1 D.,
    February 21, 1896.
    J. L. Barger, for the motion;
    Roger Foster, opposed.
   PER DURIAM.

The appellant is persistently in default. If he is to be relieved this time, it should be on the following terms: First, That within ten days he give a bond to the defendants in the penalty of $500, with two sureties, such sureties to justify on two days’ notice if excepted to, conditioned to pay the costs awarded to each of the defendants in the court below, and the costs which may be awarded upon this appeal to each of the defendants in case the judgment should be affirmed or the appeal be dismissed. And, second, that he procure, within fifteen days, from the justice who tried the case, a proper certificate and direction to the clerk to file the engrossed or printed case; such certificate and direction to be procured upon five clays' notice to the respondent of the time and place when it will be applied for, and such notice to be accompanied with a copy of the engrossed or printed case which it is intended to present to the justice for signature. In case these terms are not strictly complied with, the motion to dismiss the appeal will be granted, with $10 costs.


text:
    Peter A. Porter, Resp’t, v. James F. Murphy, App’lt.
    Sup. Ct. 4 D.,
    February 7, 1896.
   No opinion. Judgment and order -reversed, and a new trial ordered, with costs—one bill—to abide the event. Held, that the evidence presented a question of fact for the jury. GREEN, J., not sitting.


text:
    In re Post.
    Sup. Ct. 1 D.,
    February 21, 1896.
   No opinion. Motion denied, upon payment of $10 costs.


text:
    William J. Purdy, App’lt, v. Edward N. Tailer, Resp’t.
    N. Y. C. C.,
    January 28, 1896.
    Thomas O’Callaghan, Jr., for app’lt;
    G. E. Gartland, for resp’t.
   McCARTHY, J.

In regard to the formal proof on the admission of the photographs ottered in evidence, we think no harm was done, since the plaintiff afterwards practically admitted that these photographs were correct, and represented only one portion of the building. This was as claimed by the defendant, and, if there was any defect at the time they were offered and admitted in evidence, that was cured by the admission. The case was fairly and fully presented by both sides on the facts, and the charge of the trial justice was clear and concise, to which no objection was taken. We find no substantial errors, and, therefore, judgment must be affirmed, with costs.


text:
    Jeremiah Quill, Resp’t, v. Empire State Telephone & Telegraph Co. App’lt.
    Sup. Ct., 5 D.,
    December 28, 1895.
   No opinion. Judgment and order affirmed on opinion of Adams, J., at circuit.


text:
    Frank E. Rebman, Resp’t, v. Standard Oil Co. of New York, App’lt.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Judgment and order affirmed, with' costs.


text:
    Lucretia Rowley, App’lt, v. Peter A. Parker, Resp’t.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Richmond Sandiford, Resp’t, v. Carman Frost, App’lt (two cases).
    Sup. Ct., 2 D,
    February 18, 1896.
   No opinion. Orders reversed, with $10 costs and disbursements to the respondent, and the appellant granted leave to serve his case and exceptions within twenty days on payment of $L0 costs to the respondent. All concur, except BARTLETT, J., not sitting.


text:
    George Scott, App’lt, v. William Gritman, Resp’t.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Order affirmed, with costs.


text:
    Grace T. Sherman et al. v. Joseph Green.
    Sup. Ct., 3 D.,
    January 27, 1896.
   No opinion. Motion to vacate an order herein, made by the general term of the supreme court of tlie third judicial department, and enteied on the 13th day of September, 1895, and to vacate tito judgment and taxation of costs entered and made thereon, ami for a resettlement of tlie order of said general term, granted; such order to he resettled before Mr. Justice Herrick.


text:
    Solomon Simm v. Frederick Cappel.
    Sup. Ct., 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    Solomon Simon v. Jacob Van Clief.
    N. Y. C. C.,
    February 7, 1896.
    Johnson & Johnson, for app’lt;
    H. M. Headley, for resp’t.
   PER CURIAM.

The order appealed from, denying tlie motion to punish the judgment debtor fur contempt, is hereby affirmed, with costs.


text:
    Patrick Skelly v. Metropolitan El. R. Co.
    Sup. Ct., 1 D.,
    February 14, 1896.
   No opinion. Motion denied, with $10 costs.


text:
    Robert S. Smyth v. Mayor etc., of City of New York.
    Sup. Ct., 1 D.,
    February 14, 1896.
   No opinion. Motion denied.


text:
    Harriet C. Stacey, Resp’t, v. George L. Thorn et al., App’lts.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Walther D. Starr v. George Hagemeyer et al. In re Horace F. Hutchinson, App’lt.
    N. Y. C. C.,
    February 7, 1896.
    W. C. Beecher, for app’lt;
    Fullon McMahon, for resp’t.
   McCARTHY, J.

Orders in actions Nos. 1 and 3 are affirmed, with costs.


text:
    Priscilla Stoddard, Resp’t, Jane D. Brazell, App’lt.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Motion for reargument granted.


text:
    Henry Sudmeier, Resp’t, v. Henry Mahlstadt, App’lt.
    N. Y. C. C.,
    January 28, 1896.
    John Fennell, for app’lt;
    Edward F. Hassey, for resp’t.
   McCARTHY, J.

Order affirmed, with costs.


author: PRATT, J.

text:
    Francisco Tepedino, Resp’t, v. Antonio Mugno et al., App’lts.
    Sup. Ct.,
    February 11, 1896.
    Robert H. Racey, for app’lts;
    Moffel & Kramer, for resp’t.
   PRATT, J.

It is admitted "that plaintiff is a judgment and execution creditor of defendant Mugno. The conveyance which is assailed was made shortly before the judgment was entered. Tlie plaintiff called as witness the judgment debtor, the grantee and an alleged creditor of the judgment debtor, to whom it is claimed that the judgment debtor paid $1,350 of the purchase price of tiie house. The judge at special term evidently considered tlieir testimony as proving, not an honest sale of the house, but an attempt to defraud the plaintiff. In this, we think, he was right. We do not find reason to believe that the $1,350 debt existed, nor that anything was paid for the conveyance. It is quite noticeable that the attorney who prepared the conveyance is not called by tiie defense. He would be veiy apt to know the facts. Called by the plaintiff, bis evidence might be objected to; but, if the transaction was honest, why did not defendants'call him ? Judgment affirmed, with costs.


text:
    Thomas W. Thayer et al., Resp’ts, v. David W. Davies, App’lt.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide the event.


text:
    Minnie Thorn, App’lt, v. Adaline Whitbeck, Respt.
    Sup. Ct., 3 D.,
    February 3, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    George A. Thorpe, App’lt, v. Joseph T. Tower et al., Respts.
    Sup. Ct., 3 D.,
    February 4, 1896.
   No opinion. Order affirmed, with $10 costs, and disbursements. All concur, except BARTLETT, J., not sitting.


text:
    Mary E. Thrall, Resp’t, v. Edwin A. Thrall, App’lt.
    Sup. Ct., 2 D.,
    February 11, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    In re Todd.
    Sup. Ct., 1 D.,
    February 7, 1896
   No opinion. Order affirmed, with costs.


text:
    Henry Turroshke, Resp’t, v. Adam G. Frederich et al., App’lts.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Judgment and order affirmed, with costs.


text:
    Theodore Van Bremsen v. William Walz et al.
    N. Y. C. C.,
    February 7, 1896.
    George W. Stephens, for app’lt;
    Phillips & Avery, for resp'ts.
   PER CURIAM.

The order appealed from, denying motion to punish the surety, AValz, for contempt, is affirmed, with costs.


text:
    Cornelius B. Van Dyke, Resp’t, v. Manhattan Ry. Co., App’lt.
    Sup. Ct., 1 D.,
    February 14, 1896.
   No opinion. Judgment modified by reducing the fee damage to $1,875, and adjudging that this amount is awarded as consequential damages under section 1022 of the Code; and, as so modified, affirmed, without costs.


text:
    Louis C. Vanuxem v. William W. Ker.
    Sup. Ct., 1 D.,
    February 21, 1896.
   No opinion. Motion denied.


text:
    Louis C. Vanuxem et al., Resp’ts, v. William W. Ker, App’lt.
    Sup. Ct., 1 D.,
    February 21, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Village of Cortland, Resp't, v. Charles H. Warren, App’lt.
    Sup. Ct., 3 D.,
    January 27, 1896.
   No opinion. Judgments of the county court and of the justice's court reversed, with costs.


text:
    Charles Waite v. George T. King.
    Sup. Ct., 1 D.,
    February 14, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    George W. Ward, Resp’t, v. Charles Pratt et al., App’lts.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Judgment and'order affirmed, with costs.


author: INGRAHAM, J.

text:
    Pauline Wendel et al., Resp’ts, v. New York El. R. Co., et al., App’lts.
    Sup. Ct., 1 D.,
    February 21, 1896.
    Alfred A. Wheat, for app’lts;
    Edward A. Hibbard, for resp’ts.
   INGRAHAM, J.

The property owned by the plain tills in this action is situated upon the southeast corner of Third avenue and Fifty-fourth street, and has a frontage on the avenue of twenty-five feet five inches and a depth of twenty-seven feet. Upon the lot there is a five-story brick.building sixty feet in depth, with a one-story extension of about seventeen feet. The court awarded an injunction restraining the further maintenance, operation and use of the elevated structure in Third avenue unless the defendants should pay to the plaintiffs $3,000 as the injury to the fee value, and gave judgment to the plaintiffs as damages for the maintenance and operation of tho road for $180 per year. The only complaint of the defendants in this action is that the amount awarded for fee damage and rental damage is too large. Upon each of the floors of the building above the store there are eight rooms, with the exception of the second floor, which has seven rooms. The second story has lately been altered, and is let at present for business purposes. The third, fourth and fifth floors are divided into apartments having fonr rooms. There is no station at the corner of this street, and the structure of the defendants in the street is about twenty-six feet from the house line. We do not think there is any evidence to justify a finding that the construction of the defendants’ road in the street has caused any injury to the store, and a consideration of the evidence has satisfied us that the injury to the remaining portion of the premises does not exceed $125 a year. The judgment’shouid he modified by reducing the amount that the defendants are required to tender to the piaiatiffs from the sum of $3,000 to $3,000, and the amount for which the plaintiffs are entitled to judgment for damage to the rental, value should he reduced "from $180 a year to $125, and the allowance reduced to $100; and the judgment as thus modified is affirmed, without costs to either party. All concur.


text:
    In re Louis F. Whitman.
    Sup. Ct., 2 D.,
    February 4, 1896.
   No opinion. Application granted.


text:
    Jabez Wilder, Resp’t, v. John F. Leland, App’lt.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Joseph E. Wood, Resp’t, v. Minnie E. Hawd, App’lt.
    Sup. Ct., 3 D.,
    January 27, 1896.
   No opinion. Order and judgment of county court affirmed, with costs.


text:
    Ella A. Wooden, as Executrix, etc., App’lt, v. Amarilla B. Sartwell, as Executrix, etc., et al., Resp’ts.
    Sup. Ct., 5 D.,
    March, 1895.
   No opinion. Judgment affirmed, with costs, on opinion of Bradley, J.


text:
    John Yoos, Resp’t, v. City of Rochester, App’lt.
    Sup. Ct., 4 D.,
    February 7, 1896.
   No opinion. Motion denied.


text:
    Maria H. N. Bartlett, as Executrix, etc., Resp’t, v. William W. Goodrich, as Assignee, App’lt.

      (Supreme Court General Term, First Department,

      Filed December 18, 1895.)

    Insurance—Proceeds oe policy.
    Where the testator, in March, 1837, assigned a policy of insurance on Ms life to his two partners individually, which, in July, 1890, was reassigned to him, and the legal title to it was in him when he died, and the premiums were paid by the firm but were repaid after testator’s death, and the firm was at all times indebted to him, the firm’s assignee does not have an equitable title to the policy as against the executor of the insured, though, with the will there were found letters showing that testator at one time meant to reassign the policy to the firm or to his partners and also a draft of an assignment of the policy.
    Appeal from, a judgment rendered in favor of plaintiff.
    William G. Choate and John A. Deady, for app’lt ; Frederic A. Ward, for resp’t.
   PER CURIAM.

From July 15, 1890, to May 24, 1894, the date of the death of Edward B. Bartlett, the legal title to the policies of insurance on his life was in him, and on his death it passed, under his will, to the plaintiff. The defendant insists that the equitable title to the policies was in the firm of E. B. Bartlett & Co. They never were assigned to the firm, but in March, 1887, they were assigned by Edward B. Bartlett to Albert C. Woodruff and Henry B. Bitchie, in equal shares, who, with Bartlett, were partners composing the firm of E. B. Bartlett & Co. The legal title remained in Woodruff and Bitchie until July 15, 1890, when they reassigned the policies to Bartlett. The plaintiff is the representative of Bartlett and his creditors, and the defendant, is the representative of the creditors of the firm of E. B. Bartlett & Co. and of the individual creditors of Woodruff and Bitchie, and the equities of these litigants must be worked out through the equities of the individual partners as between themselves and the firm. It is very clear, that, as between the three partners, Bartlett was the equitable, as well as legal, owner of these policies, as he was between himself and the firm. The firm was at all times largely indebted to him, and at the time of his death in the sum of upwards of $127,000; and there was no obligation on his part, legal or equitable, to relinquish his individual title to the policies in favor of the firm or in favor of Woodruff and Hitchie. The annual premiuns on the policies were paid through the firm, but it is not unusual for members of firms to pay individual debts out of partnership funds; and when this is done, as in this case, with the knowledge and consent of all the partners, no wrong is done. These premiums have all been repaid to the firm since the death of Bartlett. The letters written by Bartlett, and found after his death in an envelope with his will, together with a draft of an assignment, show quite conclusively that at one time he intended to reassign these policies to the firm, or to Woodruff and Hitchie, but it is conceded that he never executed this intent. We think the evidence falls short of establishing an equitable title in the assignee to the fund derived from these policies, and that for the reasons given by the learned trial judge for his decision, the judgment should be affirmed, with costs.


author: BARTLETT, J.

text:
    Joseph Von Hatten, Pl’ff, v. Louisa Scholl et al., Def’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 14, 1896.)

    1. Judgment—Validity—Misnomer.
    A judgment of foreclosure is not void merely because a summons and other papers contain the surname only of one of the defendants, where such defendant has been actually served, though no description identifying him, or designation of such person by a fictitious name so far as his Christian name was concerned, was added.
    2. Mortgage—Foreclosure—Sale.
    In such case, the purchaser has a right to demand that the requisite amendment be made before completing its purchase.
    Appeal from an order, denying a motion by a purchaser at the foreclosure sale to be relieved from her purchase.
    Lewis Hurst, for app’lt; Edwin C. Shaffer, for resp’t.
   BARTLETT, J.

One of the defendants in the foreclosure suit was named in the summons and other papers simply as Kaul, with a blank before that name. The plaintiff did not add any description identifying the person intended, as permitted by section 451 of the Code of Civil Procedure, or designate this defendant by a fictitious name, so far as his Christian name was concerned. The purchaser insists that these defects render the judgment void, and hence that she is entitled to be relieved from her purchase. We think the omissions did not invalidate the judgment, if the defendant intended was actually served. In that event they were only irregularities, curable by amendment. Such is the clear weight of authority. Weil v Martin, 24 Hun, 645; Grant v. Birdsall, 2 Civ. Proc. R. 422. Before taking the title, however, the purchaser has the right to demand that the requisite amendment be made. This cannot be done upon the affidavit of Karl Kaul, which was read in the court below in opposition to her motion. In that affidavit the affiant states that he was duly personally served with the summons and a copy of the complaint in this action more than twenty days before the application for judgment; that his only interest in the premises involved herein was as a monthly tenant; that he has never appeared in the suit, has no defense, and waives any and all objection to the judgment. He does not say, however, and there is no proof, that he is the defendant Kaul mentioned in the summons and complaint with a blank before his name. If the plaintiff shall supply proof of this fact, and to procure the judgment to be amended accordingly, the appellant must complete the purchase.

The order appealed from should be reversed, unless the plaintiff procures an amendment of the foreclosure judgment so as to cure the irregularity growing out of the insufficient designation of the defendant Kaul. The purchaser should also have the costs of this appeal. All concur.


text:
    Ann Maria Winters, Individually and as Executrix, etc., Resp’t, v. Manhattan Railway Company et al., App’lts. (Two cases.)

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Evidence—Elevated Railroads.
    In an action for damages to the rental value of a building caused by the operation of an elevated railroad, evidence as to rents paid for other buildings on the same street is inadmissible.
    2. Trial—Objections—Waiver.
    The fact that the appellant subsequently seeks to overcome the effect of incompetent evidence by giving similar evidence on his part, does not constitute a waiver of his exception to its admission.
    Appeal from a judgment in favor of plaintiff in each case.
    Davies, Short & Townsend (Julien T. Davies and Brainard Tolles, of counsel), for app’lts ; B. L. Winters (Jesse Stearns, of counsel), for resp’t.
   FREEDMAN, J.

These two actions, which were tried together, were brought to restrain the maintenance and operation of defendants’ elevated railway in front of several of plaintiff’s premises' on Third avenue in the city of New York, and for past damages, In each of the actions the plaintiff recovered the appropriate judgment usually granted in this class of cases. Upon the trial of the issues, the plaintiff was permitted to prove, as part of her case in the first instance, the rents of other buildings on Third avenue, and the prices paid for other properties on Third avenue, than those in suit. The defendants seasonably objected to this evidence, and their objection having been overruled, duly excepted. In Jamieson v. Kings Co. E. Railway Co., 147 N. Y. 322 ; 69 St. St. Rep. 688, it was held that such evidence is incompetent and inadmissible, as tending to raise collateral issues. The counsel for the plaintiff, in his brief, concedes that, according to the decision of that case, the exception taken by the defendants upon the said point was well taken, but he claims that the evidence thus erroneously admitted did, after all, no harm. A careful examination of the whole case has failed to satisfy me that the defendants were not prejudiced, because the effect of the incompetent evidence was to lend color to the argument that some of plaintiff’s property was probably injured more seriously than was discernible from the actual rentals produced. Nor can I find that the defendants so conducted themselves as to stand precluded from claiming the benefit of the exception. That they subsequently^sought to overcome the effect of the incompetent evidence by giving similar evidence on their part does not constitute a waiver of their exception. They were compelled to do it.

For the error aforesaid, the judgment' should be reversed, and new trials ordered, with costs to the appellants to abide the event.


author: McADAM, J.

text:
    Elizabeth Woodward, App’lt, v. Robert Owen Jones, Resp’t.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Landlord and tenant—Repairs.
    WJiere the obligation to repair is not cast upon the tenant, it necessarily falls upon the landlord.
    2. Same.
    The agreement and evidence, in this case, were held sufficient to show that it was a mutual understanding that the landlord was to take care of and repair the roof.
    3. Same—Damages.
    In case of the failure of the landlord to repair in such case, the tenant is not bound to make "permanent and important repairs, which the landlord was to make, but may seek his remedy by action or counterclaim to recover the damages. '
    4. Same.
    Retaining possession of the demised premises by the tenant, is not inconsistent with a remedy on the covenant to repair made by the landlord, and is not a waiver of the tenant’s right to claim damages for a breach.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for1 a new trial.
    Adams & Hyde, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   McADAM, J.

—The action was to recover $166.67 rent for November, 1892, of premises No. 225 Eighth avenue, under a written lease thereof to the defendant for three years from May 1, 1892. The defendant set up a counterclaim of $449.55 for damages caused to his goods by reason of the roof being in a dilapidated and leaky condition. The jury found for the defendant, and awarded him, over and above the plaintiff’s claim for rent, $259.55. The evidence sufficiently establishes that the defendant’s goods were damaged by rain coming through the roof; that the plaintiff had timely notice of the defect; that the defendant did all he could to prevent injury; aud that the actual damages amounted to as much as to the jury allowed.

The question as to liability arises under the covenants of the lease.

The tenant covenanted to make all repairs, “ except the roof; ” thereby expressly negativing any implication that he assumed any responsibility whatever in regard thereto. Duke v. Ellis, 16 East, 352. All roofs require to be kept in order, and where the obligation to repair is not cast upon the tenant, it necessarily falls upon the landlord. In construing the contract it must be regarded as a whole, and- one part is to be interpreted by another. The lease contains these additional covenants : ■

“No improvements or alterations shall be made in or to the hereby demised premises, without the consent of the landlord in writing * * * And the landlord or her agents shall be permitted, at any time during the term, to visit and examine the premises at any reasonable hour of the day.”

The evidence shows that the plaintiff had repaired the roof on previous occasions; that in one instance she had paid for damages sustained by reason of the rain coming through it, and that, when she heard of the loss in question, she expressed surprise that her agent had not attended to the repairs. These facts, coupled with the plaintiff’s admission, and her expressly reserved right to visit and examine the premises, and the exemption of the roof from the repairs required to be made by the tenant (Rauth v. Davenport, 60 Hun, 70; 37 St. Rep. 664), sufficiently show a mutual understanding that the plaintiff was to take care of the roof, and that the duty of doing so was upon her. The agreement, so established in no manner conflicts with the terms of the lease, for it is in entire harmony with its evident intent.

The true measure of damages was applied. The* rule is that, where the repairs are trifling, and the damage by not making them is large, it is the duty of the tenant to make them, and charge the landlord, under his covenant to repair, the cost, Cook v. Soule, 56 N. Y. 423; Walker v. Swayzee, 3 Abb. Prac. 136; or the tenant may charge the landlord with the diminished value of the premises in consequence of the want of repair, Myers v. Burns, 35 N. Y. 269; Cook v. Soule, supra; O'Connor v. Gouraud, 2 City Ct. R. 278; affirmed, 3 St. Rep. 535; Dorwin v. Potter 5 Denio, 306; Hexter v. Knox, 39 N. Y. Supr. Ct. 109; affirmed, 63 N.Y. 561; that is, the difference in the rental value of the premises as they are and as they would have been had the covenant been performed. Thomson-Houston Electric Co. v. Durant Land Imp. Co., 144 N. Y. 34; 63 St. Rep. 8. The exception to the rule is that a tenant is not bound to make permanent and important repairs, which the landlord was to make, but may seek his remedy by action or counterclaim to recover the damages. Thomson-Houston Electric Co. v. Durant Land Imp. Co., supra. Retaining possession of the demised premises by the lessee is not inconsistent with a remedy on the covenant to repair made by the landlord, and is not a waiver of the tenant’s right to claim damages for a breach. The evidence shows that the roof was in a dilapidated condition, old and weatherworn, and that the repairs required to make it safe were of a substantial character. Indeed, the alterations required might even be of that permanent nature which for some reason the tenant, by his lease, is forbidden to make. In Phillips v. Ehrmann, 8 Misc. Rep. 39; 59 St. Rep. 396, the court held that, in a case like this, the measure of damages may embrace injury done to the tenant’s property.

Eor these reasons the judgment and order appealed from must be affirmed, with costs.

All concur.


text:
    Michael Sheehy, Resp’t, v. Utah, Nevada and California Stage Company, App’lt.

      (New York Superior, Court, General Term,

      Filed December 18, 1895.)

    Appeal—What considered—First instance.
    A city ordinance, which was not called to the attention o£ the trial court-will not be considered for the first time on appeal for the purpose of reversing the judgment.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Walter Alexander, for app’lt; G. Washbourne Smith, for resp’t.
   FREEDMAN, J.

There was no error in the denial of defendant’s motion for a dismissal of the complaint at the close of plaintiff’s case and at the close of the whole case. The questions relating to defendant’s negligence and plaintiff’s contributory negligence were, upon the facts as they appeared, for the jury; and the verdict as rendered cannot be said to be against the evidence or against the weight of the evidence ; nor should it be disturbed as excessive. The instruction given to the jury, that, if they found that the driver of the mail wagon was driving faster than at the rate of five miles an hour, it was a violation of section 1932 of the law known as the “Consolidation Act,” and that the jury might take into consideration as bearing upon the question of defendant’s negligence, does not call for reversal. The defendant took only a general exception to it. No ordinance of the common council in conflict with that section was brought to the attention of the trial judge, and, consequently, if any such ordinance does exist, and were otherwise available, it cannot be introduced on appeal for the first time for the purpose of reversing the judgment. Porter v. Waring, 69 N. Y. 250. The instruction as given left it to the jury to find whether defendant’s driver was driving faster than at the rate of five miles an hour, and, if he did, what effect such driving had, under all the 'other circumstances, upon the question of defendant’s negligence. Thus considered, the instruction did not involve error. The charge as a whole was more favorable to the defendant than the defendant was entitled to, for it gave to defendant’s driver, as the driver of a mail wagon, as matter of law, the right of way as against the plaintiff while -driving a street-railroad car,—a proposition which it would be difficult to substantiate if it became necessary. Upon the whole case, substantial justice seems to have been done, and no ground appears to exist for reversing the judgment or order appealed from.

The judgment and order should be affirmed, with costs.

All concur.