text:
    Alonzo E. Smith, Resp’t, v. Stuart W. Cowan, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Contract—Entire—Recovery.
    Though plaintiff fails to perform fully his entire contract, the defendant is not entitled to recover all amounts he has paid the plaintiff on account of the contract, hut can recover only as he shows damages.
    3. Trial—Instructions.
    An instruction, “that if the jury shall find from the evidence that plaintiff did not fairly and substantially perform the contract, in all its. parts, defendant is entitled to recover from the plaintiff such damages as-the jury shall find from the evidence to have been sustained by the defendant by reason of such non-performance by the plaintiff,” is not. proper where there is nothing in the case on which the jury can give the. defendant an affirmative judgment for damages.
    8. Same.,
    Where the jury determines that the plaintiff has performed his contract, any instructions or refusal to instruct, in case the jury finds that the-plaintiff has not performed his contract become immaterial.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    Walter E. Beach, for app’lt; Herbert Green, for resp’t.
   CULLEN, J.

This action is to recover for dredging and excavation done by the plaintiff for the defendant. The dredging was done in the excavation of a canal and basin on defendant’s meadow. The employment of the plaintiff, and the amount of work done by him, are not in dispute. Both parties assert that there was an oral contract between them for the excavation of the whole canal and basin. They agree on the price to be paid,, which was twelve and one-half cents a yard. The vital dispute-between them is as to what depth the canal and basin were to be-excavated; the plaintiff insisting that he was to excavate only to-where hard bottom was found, and the defendant contending that the plaintiff was to excavate to a uniform depth of nine feet, regardless of the character of the material to be excavated. During the progress of the work the defendant made certain payments or advances to the plaintiff on account of the work. The action is-to recover the balance due. On the trial it was conceded that the-plaintiff’s agreement was an entire one, that is, to do all the excavation requisite for the canal and the basin. The question, therefore, litigated was, what were the terms of the contract between the parties? and whether the plaintiff had substantially performed it. The cause was submitted to the jury, under a charge by the-court that the plaintiff must satisfy them that he had substantially performed his contract, and, if he failed so to do, he was entitled to recover nothing for the work done by him. The defendant makes no complaint of the manner in which the issue was submitted to the jury. His principal point urged on this appeal is that the verdict of the jury, on these issues, was against the-weight of evidence. As to this, we can only say that a careful review of all the testimony satisfies us that there was a fair conflict of fact between the parties, the evidence to support which, oa neither side, was so overwhelming as to justify the court in setting aside the determination the jury might make of the question.' * The exceptions taken by the defendant to the rulings of the-court admitting or excluding evidence care without merit, and require no discussion. There were, however, two requests to charge which the court refused. The rulings require examination.

The court was asked to charge that, if the plaintiE had failed to substantially perform his contract, the defendant was entitled to recover all amounts he had paid the plaintiE on account of thecontracto We can find no authority for this proposition, and believe it to be essentially unsound. If a party fails to perform a; contract, the other party is entitled to recover damages for its breach. The ordinary rule of damages, in a case of a breach of », contract, is the expense or cost of performance, with of course, in certain cases, the damages occasioned by delay, or other special damage. " But where one party has paid in advance either the whole or part of the consideration on his part, his right to recover-back such payments, on default by the other party in the performance of the contract, does not proceed on the ground that such payment is the measure of damages for the breach, but on the theory of a rescission of the contract by the party not in default, or because the consideration for the payments has failed. “Generally,, no contract can be rescinded by one of the parties unless both be restored to the condition in which they were before the contract, was made. If, therefore, one of the parties has derived an advantage from a partial performance, * * * he cannot hold this, and consider the contract as rescinded because of the nonperformance-of the residue, but must * * * seek his remedy in damages.” 2 •Bar. Cont. 679. So, also, if the party not in default proceeds on the theory that the consideration for his payments has failed, he may doubtless maintain his action, but he is not entitled to recover, except to the extent that the consideration has falied. Nowhere-has the law been held more strictly, that a party must substantially and completely perform his contract, or recover nothing, than-in this state. Smith v. Brady, 18 N. Y. 173; Champlin v. Rowley, 13 Wend. 258. In the latter case, which is frequently referred to-as a decisive declaration of this doctrine, the plaintiE had made an agreement to sell and deliver 100 tons of hay at a specified-price,—$100 in advance,—the remainder when the delivery was completed. He delivered fifty-two tons, and failed to deliver the remainder. It was held he could not recover. It is said by Nelson, J.: “Unless we are at liberty to make a contract for these-parties, it is perfectly clear that, beyond the $100 which was to be-paid in advance, the defendant is not bound to make any payment-towards the hay until the whole quantity has been actually received by him,”—a clear admission of the right to retain the $100-paid. In the present case, in case of failure on .the part of the plaintiE to perform his contract, the defendant had doubtless the right to recoup, either by way of set-o.fi or counterclaim, the expense or cost of completing the contract over the contract price together with any loss or injury for the delay. But to entitle him to recover back his payments, either in whole or in part, he was bound to show that the work done was of no value to him, or of less value than the amount paid. The evidence shows the fact to be the exact reverse.- It is not pretended that all the work done, by the plaintiff was not necessary and proper, but the claim is that he should have more. We are therefore of opinion that the rule which the court was thus asked to charge, without qualification or condition was properly refused.

The second request was “that if the.jury shall find from the evidence that plaintiff did not fairly and substantially perform the contract, in all its parts, defendant is further entitled to recover from plaintiff such damages-as the jury shall find from-the evidence to have heen sustained by defendant by reason of such nonperformance by the plaintiff.” As an abstract proposition of law, this request was undoubtedly correct, and the refusal to charge it would have been error if there was any evidence in the case from which the jury could have ascertained defendant’s damages. We have looked through the case in vain for such evidence. The agreement was to pay for the excavation a specified price per yard. The plaintiff stopped work when he reached hard bottom, claiming that such was his contract. The defendant claimed that the plaintiff should have excavated to a depth of nine feet, regardless of the material to be excavated. If the defendant was right as to the terms of the contract, he was undoubedly entitled to recover, as damages for its breach, the difference between what the excavation of the hai'd bottom would cost and what the plaintiff had agreed to do it for, but there is no evidence in the case of what the cost of such work would be. The only approach to it is the testimony of the defendant that, subsequently to the plaintiff leaving the work, he (defendant) had the basin and channel deepened at a cost of $1,600.' There is no evidence to show whether this deepening was requisite to carry the excavation to the prescribed depth, of nine feet, nor how many yards of material were excavated, nor the price paid per yard. For aught that appears, it may be the work was done at a less cost than that prescribed by the contract. There was therefore nothing in the case on which the jury could give the defendant an affirmative judgment for damages.

There is a further answer to the defendant’s claim of alleged error in respect to these refusals to charge. The case was submitted to the jury under the’ instruction that, unless the plaintiff had substantially performed his contract, he could recover nothing. As the jury rendered a verdict for the plaintiff, it was necessarily determined that the plaintiff had performed his contract, and therefore any instructions or refusals to instruct, in case the jury found that the plaintiff had not performed his contract, became immaterial.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.

BROWN, P. J., and BARTLETT and HATCH, JJ., concur; PRATT, J., dissents, without opinion.


source: Caselaw Access Project

author: PRATT, J.

license: Public Domain

text:
    Thomas Reilly, Resp’t, v. Atlas Iron Construction Company, App’lt.

      (Supreme Court, Appellate Division, Second, Department,

      Filed April 7, 1896.)

      1. Appeal—Conflicting evidence.
    The verdict of a jury, upon conflicting evidence, will not he disturbed on appeal.
    3. Same
    The question whether the cause of the bricks falling from a building upon plaintiff was the fact that they were struck by a derrick, as averred by plaintiff, was held, upon conflicting evidence in this case, to be one for the jury.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    Herbert C. Smyth, for app’lt; Charles J. Patterson, for resp’t.
   PRATT, J.

This is an appeal from a judgment entered upon a verdict of a- jury awarding damages to plaintiff for pei-sonal injuries, and also from an order denying a motion for a new trial. The plaintiff was employed by P. J. Castin & Co., who were engaged in the construction of á building on Fulton street, in the city of Brooklyn, on the 15th of September, 1892. The defendants were engaged in putting up the iron framework on the building, and had nearly or quite finished placing the iron beams /or the first floor of the building. There was a pile of bricks resting upon a platform of planks on the iron beams, between thirteen and fifteen feet long, and ten to ■eleven feet wide, and about four feet high. This pile of bricks ■was walled in three sides by dry bricks laid' one upon the other, and, inside the wall, bricks were thrown in loosely. The flooring had not been laid over the iron beams, so that there were open spaces between the beams, and around the pile of bricks described. The plaintiff was at work in the cellar, nearly under the platform which held the pile of bricks.. The negligence ■charged in the complaint is that the defendants were engaged in moving the derrick, and that they “ moved the same negligently ■and carelessly, and drove the said derrick, while they were on the first story of said building, against the pile of bricks and thereby knocked a large quantity of said bricks into the-cellar, where plaintiff was at work,” and that some of the bricks struck said plaintiff and injured him. The fact was conceded that defendant's men were moving the derrick, about the time of the accident, in the close vicinity of the brick pile; but the other facts were sharply contested, and the evidence was very conflicting. Witnesses or such accidents are usually under excitement, and are quite likely to differ, when relating what they sdw. Circumstances impress persons differently, so that those who see an accident of that kind, though equally honest, differ as to time and order of events, and in other respects; and only a jury can properly settle a question, upon such conflicting claims.

Defendant made a motion to dismiss the complaint upon the-ground that the negligence charged in the complaint was not substantiated by the proof, and that the verdict was clearly against', the weight of evidence. Assuming for the sake of argument, that the weight of evidence was against the claim that the derrick was moved against the pile of bricks, still, if the bricks were made to fall by the jar of the movement of the derrick, or by the falling of the guy ropes upon the brick, it constitutes no fatal variance-in the proof with the allegation. The charge was negligence in moving the derrick, causing the bricks to fall. Considering all the circumstances, the jury was authorized to find, upon the evidence, that the derrick was moved against or upon the pile of bricks, and caused them to fall, but the court specifically charged the jury that only by defendant’s moving the derrick against the-pile of bricks could plaintiff recover a verdict. All question of jar was therefore eliminated from the case. 'Not only is this view consistent with the evidence, but it is consistent with reason. The-pile of bricks rested upon a level platform, and was surrounded, and supported by a brick wall. It 'had remained in the same position for some weeks. The floor upon which it was built, extended outside the wall several inches,—the width of two-planks. There is no reason to suppose or believe that the bricks'would have fallen without interference, and there was no cause-present when they fell, except the derrick. Just before the bricks fell they were moving the derrick in the direction towards the bricks, and there is evidence that they were moving it up to the time the bricks did fall. Considering all the circumstances, we think it was a proper case for a jury, and that a finding that implies that the derrick was moved against the pile of bricks, and caused it to fall into the cellar, does not lack support, in the evidence. This view of the case was entertained by a previous genera!term of this court, before which an appeal in that, case was argued, involving substantially the same questions and' like evidence. In addition to the testimony-which was before the general term upon the former appeal, the plaintiff introduced a witness (one Anthony Eabbit) who testified that he was present, at the time of the accident, where he could see what took place, and that he saw the derrick strike the brick pile and knock it. down. • He explained by saying that it was caused by one of the-men engaged in moving the derrick allowing a guy rope to become slack while the derrick was being pried forward by a crowbar. That evidence alone, if believed, justifies a verdict in some sum for the plaintiff.

The exception taken bv defendant to proof of the condition of the brick pile the day beforé the accident has no merit, especilly when it was shown that the pile had not been changed between the time stated and the accident. Other exceptions were taken upon the trial, but no point was made upon the argument, or in-defendant’s brief, except to the denial of the motion to dismiss the; complaint, and denial of motions fora new trial.

We find no error sufficient to warrant a reversal of the judg= ment, which is affirmed, with costs.

All concur.


author: ADAMS, J.

text:
    Adelbert P. Little, App’lt, v. Alfred W. Gallus et al., Resp’ts.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Trade secrets—Employe.
    The law raises an implied contract that an employe, who occupies a confidential relation towards his employer, will not divulge any trade secrets imparted to him or discovered by him in the course of his employment.
    2. Injunction—Trade secrets. '
    An owner of a process or invention for manufacturing an article, which was kept secret from all but confidential employes, may restrain such employes from disclosing, or using in a rival establishment, their knowledge thereof, acquired while occupying such confidential relation.
    8. Same.
    That there was no written contract between them, is immaterial,
    4. Same.
    The fact that, at the commencement of the employment, the employes were minors and performed comparatively unimportant duties, does not relieve them from a faithful observance of their obligation,
    Appeal from a judgment dismissing the complaint,
    Walter S. Hubbell, for app’lt; Richard B. White and CL M. Allen, for resp’ts,
   ADAMS, J.

No specific findings of fact were made by the learned justice before whom this cause was tried1 at the special term, and it therefore becomes necessary to carefully examine the record in order to ascertain just what the evidence tends to establish. Such an examination discloses the fact that there is really but little conflict between the testimony of the plaintiff and his witnesses, and that of the defendants. The latter, it is true, do not, in express terms, admit all that is testified to by the former ; but, nevertheless, the evidence which they 'furnish tends, as ■ a whole, to strengthen all the material allegations of the plaintiff, and we think that it may, in consequence, be safely asserted that the following facts are clearly established, viz.:

In 1885 the plaintiff began experimenting with a view to manufacturing typewriter ribbons. At this time he knew nothing of the way in which they were made, but he employed an expert chemist, Dr. Lattimore, of the University of Rochester, to assist him, and, after long and laborious study, accompanied by thousands of experiments, in the course of which he expended large sums of money, he at last perfected a "ribbon which was different from any other which was then being manufactured, and which proved a most valuable" discovery, and one which enabled him to cany on a large and lucrative business. He asso* ciated with him a Mr. Bettys, whom he knew to lie an expert machinist, and who aided the plaintiff in. perfecting his invention, and has since exercised a general supervision over the business. The processes, appliances, and formulae which, were employed to pro'duce the results obtained in this business were some • fifteen in number, and care was taken to keep their character and the manner in which they were used a profound secret. The defendant Gallus was employed by the plaintiff in 1883, and prior to his engaging.in this particular business, and the defendant Bostwick entered his service in 1892. The were both young men, the former being but fourteen years of age, and the latter nineteen, when entering upon such employment, and, in consequence, their labors at first were only such as might be required of persons of their immature age; but, as they gained in years and experience, the work performed by them- became more important and delicate in its character, and the defendant Gallus was ultimately promoted to the position of foreman. They were frequently informed, and admit that they well understood, that the processes employed by the plaintiff in manufacturing his goods were his own invention; that they were to be kept secret; and that the different ingredients' employed in compounding these various processes were given peculiar names, in order that no one who might by chance see them should know of-what they'really consisted. They likewise understood that the plaintiff confided in them, and permitted them to obtain complete knowledge of the different processes and formulae he was using in his business, in reliance upon their fidelity as his confidential servants. In 1894 the defendants Gallus and Bostwick left the plaintiff’s employ, the former having been discharged; and they thereupon associated with themselves other parties, organized the Rochester Ribbon •& Carbon Company, and proceeded to manufacture typewriter ribbons of the same character and after the same manner as those manufactured by the plaintiff. The evidence tends to show that, while in the plaintiff's service, Bostwick had obtained a copy of every formula which was in use; and Gallus admits that, even before his discharge, he contemplated manufacturing ribbons on his own account, and he testifies:

‘•When ! commenced this work of starting this company on the knowledge I had, it was what I had gained while with Mr. Little. I proposed to start a company upon the knowledge I had when I left‘Mr. Little’s employ. * * ' * ' I considered myself competent to make the dope on July 20, 1894 [date of his discharge], if I could get the colors, because of the knowledge I had gained while with Mr. Little. * * * Certainly, it was knowledge I had gained there that I proposed to use more or less in the new factory, in regard to the mixing of the compounds, as well as of the ribbons. The manner of making ribbons as Mr. Little made them was all the way I knew of making ribbons. What I knew in regard to colors and formulae and the dope which I proposed to use in the new company was all acquired while I was with Mr. Littlé.” '

And the defendant Bostwiek testified:

“The way Mr. Little made them [ribbons] was the only way I knew how to make them, and so far as I know, that was the source of Mr. Gallus’ knowledge. " So, upon what I had learned there, I was going into the business myself.”

It seems, therefore, too plain for controversy that the plaintiff was the owner of, a process or invention which possessed great value, and which he had secured at the cost of much time, trou'ble, and expense; that the defendants Gallus and Bostwick, occupying a confidential relation towards the plaintiff, gained a knowledge of the processes and formal re employed by him in conducting his business; that they well understood the nature of the business, their relations to it, and the care which was used to keep the same secret; and that, notwithstanding the knowledge thus obtained, and in violation of the faith and confidence reposed in them, they surreptitiously made memoranda-of these formulae, and are now using the same, as well as all the other knowledge obtained while in the plaintiff’s service, to start and operate a rival establishment. The only question, therefore, to be determined, upon this state of facts, is whether or not they shall be permitted to carry out their intentions. It is contended by the plaintiff that his case is brought directly within the rule laid down in that of Eastman Kodak Co. v. Reichenbach, 79 Hun, 183; 61 St. Rep. 97, recently decided by the general term in the Fifth department. And the defendants, while conceding that the law of the case is there correctly stated, insist that the facts do not warrant its application here.

We find ourselves unable to concur in the view thus taken, and which was carefully elaborated upon the argument by the learned counsel for the defendants. The facts of this case differ somewhat from those -of the Reichenbach Case, in that there was no written agreement entered into between these parties! by which the employes undertook to give to their employers exclusive right in or control over any inventions, discovered or disclosed to the former; but we are unable to see how this strengthens the defendants’ contention. In the case cited there happens* to be an express contract, but nevertheless it is asserted, an the opinion of the court, and such is unquestionably the correct rule, that the law raises an implied contract that an employe who occupies a confidential relation towards his employer will not divulge any trade secrets imparted to him or discovered by him in the course of his employment; .and we do not see why the defendants Gallus and Bostwick are not under just as strong an obligation to observe and keep sacred the trust reposed in them as they would be had they reduced the contract which the law implies to writing. Nor does the fact that they entered the plaintiff’s service while minors, and at first performed duties comparatively unimportant in their character, relieve them from a faithful observance of their obligation. Gallus, at least, was ultimately advanced to a position of great responsibility, and both of them had attained their majority before attempting to take improper advantage of the knowledge imparted to them while in the plaintiff’s employ, and their present experiments are not in the direction of legitimate competition, but involve a breach of trust which we think the court should prevent. For thepe reasons we are of the opinion that the judgment appealed from should be reversed, and that a new trial should be granted.

Judgment reversed, and a new trial granted, with costs to abide the event. .

All concur, except GREEN and WARD, JJ., dissenting.


text:
    Douglass H. Grand et al., Resp’ts, v. Johnston Livingston, as President, etc., App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Carriers—Exemption from liability.
    In this state, carriers may, by express stipulation, limit their common i law liability to the extent of relieving themselves from the consequences of their negligent acts.
    3. Same. ''
    This rule is applicable to cases only in which the language of the contract is plain and unequivocal, and the apparent tendency is to restrict its operation tó the very narrowest possible compass. .....
    8. Same—Massachusetts.
    A contract, which amounts to an absolute release of the company from all liability for duty omitted, as well as for affirmative1 acts of negligence, however gross may he their character, has never been recognized as possessing any validity in the state of Massachusetts. __ __

      4. - Contract—By what laws governed. "" ' 1
    The fact that a contract was executed in another state of itself furnishes sufficient reason for concluding that the law of that state is controlling, unless it is made to appear that it was the intention of the parties, when entering into the contract, to be bound by the law of some other state.
    5. Same.
    Such intention must have been entertained by both parties.
    6. Same.
    The burden of overcoming such presumption rests upon the company.
    7. Same—Intent.
    The residence of the parties, and the fact that the contract, by its terms was to be partly performed within this state, are circumstances which, may very properly be considered in determining the question of intent.
    8. Same.
    A provision indorsed on the contract for shipment and exempting the carrier from liability for injury to the persons accompanying the stock, which expressly provides that any question arising thereunder^ shall be determined by the laws of this state, is sufficient to overcome the inference to he drawn from the fact of residence of the parties and the place of a part performance of the contract.
    9. Same. , -
    So, a construction which will make the contract a very unreasonable one and place the shippers entirely at the mercy of the company affords a sufficient reason for refusing such construction.
    • Appeal from a judgment of plaintiffs and from an order denying a motion for a new trial on the minutes.

      The plaintiffs herein are co-partners in the business of purchasing and selling horses at East Buffalo, in this state, and they are ••all residents of the state. The National Express Company, a joint-stock association, is a common carrier of goods, chattels, merchandise, and live stock, for hire, and has offices in various "towns and cities of the different states, and among others, one in the city of Buffalo, in the state of New York, and one in the city •of Boston, in the state of Massachusetts. The defendant is the president of such association, and a resident of the city of New York, at which place is located the principal office of the company. Upon the 4th day of November, 1894, the plaintiff Dou-glass H. Grand delivered to the defendant, at the city of Boston, a quantity of horses, to be by it transported and delivered to his firm in the city of Buffalo, in consideration of the sum of .‘$125 to be paid therefor. The horses were carried to Buffalo, two representatives of the plaintiffs accompanying them upon the cars, and were there delivered to the consignees. But it is claimed ■that, in consequence of the negligence of the defendant, they were seriously injured while in transit, to the great loss and •damage to the plaintiffs.
    At the time of delivering the horses to the defendant for -shipment, the shipper was required to sign a contract or release, which reads as follows:
    “Live Stock Taken Only at Owner’s Bisk.'
    “ National Express Company.
    “ Live Stock Contract.
    “Agreement, made at Boston, Mass., on the 4th day of November, 1894, between the National Express Company and D. H. Grand, of Buffalo, N. Y.:'
    “Whereas, said D. H. Grand has this day delivered to said company at Boston, Mass., the following animals, value agreed at $75.00 per head, 22 horses, of which he declares himself to be the owner, consigned to D. H. Grand & Co., at Buffalo, N. Y: Now, it is agreed that said company undertakes, as forwarders only, to forward said property to the nearest point of destination reached by said company. It being understood that said company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it, is agreed that it shall not be liable for any damage to said ■property caused by the detention of any train of cars, or of any steamboat upon which said property shall be placed for transportation, nor by the neglect or refusal of any railroad company or steamboat to receive and forward the same. "" ^ * In consideration of the undertaking of said company to forward said property as above mentioned, and of the reduced rate of compensation at which said property is to be so forwarded, said shipper agrees that said company, its agents, or any railroad or transportation company or carrier over whose lines the said property may pass, shall not, under any circumstances nor for any cause, be liable for any injury or damage to or loss of said-property, whether or not the said injury, damage, or loss happen or arise from any fault, negligence, or carelessness, gross or otherwise, on the part of said company, its agents, or servants; it being the intent of this contract that said property shall be forwarded entirely at the-owner’s risk.
    “For National Express Co.,
    “ W. G. Hamlin, Agent
    “ [Shipper will sign here.]
    “D. H. Grand, Shipper.”
    John W. Milburn, for app’lt; I. W. Cole, for resp’ts.
   ADAMS, J.

The question of the defendant’s negligence,’as-well as that of the contributory negligence of the plaintiffs’ representatives, was submitted to the jury upon evidenee which was-somewhat conflicting in its character, but which, it is conceded, was ample to support the verdict; and the only question presented by the record which, appears to require serious examination is-that which arises upon the construction given by the trial court to the release which, is embodied in the shipping contract eñteredi into cotemporaneously with the delivery of the horses to the defendant. This instrument is as broad and comprehensive in its - terms as language can possibly make it, and, if valid, amounts to-an absolute release' of the defendant from all liability for duty omitted, as well as for affirmative acts of negligence, however gross; may be their character. Such a contract has never been recognised as possessing any validity in the state of Massachusetts (School Dist. in Meadfield v. Boston, H. & E. R. Co., 102 Mass. 552; Pemberton Co. v. New York Cent. R. Co., 104 Mass. 144; Walsh v. Railroad Co., 160 Mass. 57); while, upon the other hand, the courts of this state have held, and it is now the. accepted law of" the state, that carriers may, by express stipulation, limit their common-law liability to the extent of relieving themselves from.the consequences of their negligent acts. Mynard v. Railroad Co., 71 N. Y. 180; Nicholas v. Railroad Co., 89 N. Y. 370; Kenney v. N Y. C. & H. R. Railroad Co., 125 N. Y. 422; 35 St. Rep. 447. It is to be noted, however, that this rule is applicable to cases-only in which the language of the contract is plain and unequivocal, and that there is an apparent tendency in the latter decisions to-restrict its operation to the very narrowest possible compass. Our attention has not been directed to any case which sanctions-so thorough and radical a divesting of all liability as is sought to-be accomplished by the release in question, nor do we believe that the rule ought to be extended so as to exempt the carrier-from the consequences of gross negligence, although it is, perhaps, unnecessary to express any opinion upon that subject, inasmuch; as we are disposed to consider the case from another and somewhat different standpoifit.

The value which attaches to the exemption clause of this contract depends, necessarily and in any event, upon whether it is to-be governed by the law of Massachusetts, or by the law of this-state; and the determination of this question involes not only a, careful examination of the instrument itself, but likewise of alB the circumstances attending its execution. First in importancestherefore, is the fact that the contract was executed in the former-state, and this of itself furnishes sufficient Reason for concluding that the law of that state is controlling, unless it is made to appear that it was the intention of the parties, when entering into the contract, to be bound by the law of some other state. This statement of the law of the place is one which might, perhaps, be safely permitted to rest upon the principle; but it is supported by abundant authority.

In the case of Lloyd v. Guibert, 6 Best-& S. 100, it was said, by Mr. Justice Willes, in delivering the judgment, that.

“ It is generally agreed that the -law of the place where the contract is made is, prima facie, that which the parties intended, Drought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought, therefore, to prevail, in the absence of circumstances indicating a different intention, as, for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immovable property situated in another country.”

In another English case the same doctrine was enunciated by Denman, J., in the following language, which was subsequently approved by the court of appeal:

“ The general rule is that, where a contract is made in England, between merchants carrying on business here, as this is, but to be-performed elsewhere, the construction of the contract and all its-incidents are to be governed by the law of the country where the contract is made, unless there is something to show that the intention of the parties was that the law of the country where the-contract is to be performed should prevail.” 12 Q. B. Div. 589, 596, 600. _

_ And this general rule has been recognized and adopted in this-country by an almost unbroken lines of decisions of both the state and federal courts, to some of which it may be desirable to advert briefly.

In the case of McDaniel v. Railway Co., 24 Iowa, 412, which was-quite similar in its main features to the one at bar, and in which it. appears that the cattle transported by a railroad company from a place in Iowa to a place in Illinois, under a special contract made-in the former state, containing a stipulation that the company should be exempt from liability for any damage, unless resulting from collision or derailing of trains, were injured in Illinois by ,the negligence of the company’s servants, it was held that the .case was to be governed by the law of Iowa, which permitted no common carrier to exempt himself from the liability which would exist in the absence of the contract. The court, Chief Justice-Dillon presiding, said :

“ The contract being entire and indivisible, made in Iowa, and to be partly performed here, it must, as to its validity, nature, obligation, and interpretation, be governed by our law.”

See, too, in Pennsylvania Co. v. Fairchild, 69 111. 260, where a. railroad company received, in Indiana, goods consigned to a party in Leavenworth,Nan., and which were destroyed by fire while in transit, the court held that the case must be governed by the law <of Indiana, by which one of the carriers was ont liable for the loss of goods after they passed into the custody of a connecting line; while, as early as 1832, Mr. Justice Thompson, of the United States supreme court, in Cox v. U. S., 6 Pet. 172, applied the same rule, 'which has been frequently reiterated by that •court down to the present time. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397.

The cases in otir own'state which contain express recognition of this rule are very numerous, and it can hardly be necessary or profitable to cite more than one or two of them.

In Dyke v. Railway Co., 45 N. Y. 113, 116, it was said, by ALLEN, J.:

“ The lex loci contractus determines the nature, validity, obligation, and legal effect of a contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other state or government, as when it is to be performed in another place; and then, in conformity to the presumed intention of the parties, the law ■of the place of performance furnishes the-rule of interpretation.”

And in China Mut. Ins. Co. v. Force, 142 N. Y. 90-100; 58 St. Rep. 400, it is said that:

“ The obligation of the shippers of the cargo is to be determined by the law of the place where the affreightment was made.”

If, then, the rule which has been thus far considered is applied to this case, it follows that the release under which the defendant -seeks to escape liability must be given effect and construction under the law which obtains in Massachusetts, unless it can be fairly said that the parties thereto, at the time of executing the ■same, clearly manifested an intention that it should be governed by the law of this state, which intention, it may be added, must -have been entertained by both of them. And, as we have seen that the law where it was executed affords prima facie evidence -of the intent of the parties, the burden would seem to rest upon the defendant of overcoming the presumption thus created, by satisfactory proof.

It was said by Andrews, Chief Judge, in the Nicholas Case, ■supra, that:

“ The circumstances under which contracts of this kind are usually made preclude a careful consideration, by the shipper, of their language and effect.”

And for this reason, as was suggested upon the argument, the question of intent can hardly be said to involve the actual mental -operations of the parties. For, as a matter of fact, they probably did not stop to consider what was the legal effect of their agreement, or whether there was any diversity in the law of the two -states; and, therefore, when we speak of the “ question of intent,” we ar.e making .use of what may perhaps be termed a “legal fiction”; but, nevertheless, the law does look at the acts of the •parties, and the circumstances surrounding them, which may possibly have exerted some influence upon their actions, and then assumes that their intention is in harmony with such acts and circumstances.

The facts relied upon by the defendant as indicating an intention to bring the contract within the operation of the law of this ■state are: (1) That this state is the legal residence of the defendant, and the actual residence of the plaintiffs; (2) that the contract, so far as delivery is concerned, was to be performed in this -state; and (3) that no effect could be given to the provisions of the contract, if the same is to be interpreted by the law which -obtains in the state where it was executed. It is undoubtedly a well-settled rule of construction that meaning and effect shall be -given to all of the language employed in a Contract, provided it can be done without violence to the plain object and intent of the parties thereto. Buffalo E. S. R. Co. v. Buffalo St. R. Co., 111 N. Y. 132; 19 St. Rep. 574. And if this contract was one which , had been drawn up at the time of its execution, to express the ■¡intention of the parties in this particular transaction, it might be virged, with considerable force, that the law of this state should be invoked, in order that effect might be given to all its provisions ; but it appears that the agreement was completed by filling up a blank form with such words as was necessary tp fit the occasion, and presumably, just such a form as was used by the company in its business throughout the entire country, or wherever it had ah office. And this circumstance must be regarded as lessening somewhat the force which might otherwise attach to the defendant’s contention in this regard. The residence of the parties, and the fact that the contract, by its terms, was to be partly performed within this state, are certainly circumstances which might very properly be considered in determining the question of intent’ and which might, perhaps, prove efficient aids to the court in its ■effort to reach a correct solution thereof, were there nothing in, the case to counterbalance them; but, in considering this question two distinct facts or circumstances are made prominent, either one of which, we think, is sufficient to overcome any inference which may be properly drawn from those relied upon by the defendant and which have just been adverted to.

It has already been stated that, when these horses were shipped, it was arranged that two representatives of the plaintiff should accompany them upon their trip to Buffalo. This, it seems, was re-quired, as one of the conditions of transporting the horses, and no -additional fare was charged for these men ; but they, too, were obliged to enter into a contract with, the express company absolving it from all liability for injury to their persons or property. This supplemental release was indorsed upon the back of the original contract, and in that the defendant was careful to insert a clause expressly providing that any question arising thereunder should M be determined by the law of the state of Hew York.” This certainly furnishes sufficient evidence to justify the conclusion that, when the defendant desired to bring any contract within the operation of the law of a particular state, it was aware of the importance and necessity of expressing such design in language ■which was incapable of misconstruction; and therefore its omission to insert a similar provision in its original contract possesses a significance which cannot be disregarded in the effort to ascertain the intent of at least one of the parties thereto.

The other circumstance, to which allusion has been made, arises out of the fact that to give to this contract the construction contended for by the defendant would make a contract for the-plaintiffs which, to say the least, is a very unreasonable one, and which would place them entirely at the mercy of the defendant. And this, in the absence of any other circumstance, would, in our opinion, afford sufficient reason for refusing such a construction. Russell v. Allerton, 108 N. Y. 288; 13 St. Rep. 629.

We think that thé case was properly disposed of at the circuit, and that no sufficient ground is presented for interfering with the result reached, and that the judgment and order appealed from, should therefore be affirmed, with costs. ■” .

Judgment and order affirmed, with costs.

All concur.


text:
    The People ex rel. Buffalo Paving Company, Resp’t, v. James Mooney et al., App’lts.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Municipal corporations—Street improvements.
    The common council of the city of Buffalo is invested by the city-charter with exclusive authority and control in the matter of directing all public work and improvements, save in the cases provided for by section 283, while the duty imposed upon the board of public works is, in the main, supervisory "in its nature.
    2. Same . 1

    But the latter body is not utterly divested of all discretionary power.
    3. Same.
    Where the council let to the lowest bidder the paving of a street recommended by the board, and directed the board to make a contract- therefor with such bidder, the board has a discretionary power, under the proper exercise of which it can refuse to make the contract.
    Appeal from an order directing that a writ of mandamus issue, commanding defendants to execute and deliver to relator a contract for paving.
    James L. Quackenbusb, for app’lts ; Emory P. Close, for resp’t..
   ADAMS, J.

The charter of the city of Buffalo was subjected to a general revision-by the legislature of this state in 1891, and, ' so far as material to the issues involved' in this proceeding, its various provisions will be found in chapter 105 (Iff the laws of that year. Chapter 1 of title 10 of the revised charter creates a department of public works, to consist of three commissioners, whose duties and powers are clearly defined. Section 271 provides :

“ That the board of public works'' shall have charge and control : (1) * * * (2) * * * (3) Of locating, laying out, opening, constructing, altering, regulating, grading, regrading, paving, repaving, guttering, repairing, cleaning, sweeping, and sprinkling all streets, avenues, places, alleys, and roads (except .such as are placed in charge of the park commissioners).”

And by section 272 it is further provided :

“ When any work or improvement, general or local, prescribed in this title, is necessary or advisable, the board may recommend the same to the common council, with or without plans, specifications and descriptions. The common council may thereupon order the work done, or may order that plans, specifications and descriptions shall be furnished with or without estimates of costs or bids from responsible parties who will contract with the city to do the prescribed work. The common council may order any work or improvement either with or without the recommendation of the board of public works, but when such work or improvement is ordered in accordance with plans, specifications or descriptions, a contract therefor shall be made by the board, except where it is authorized to do the work itself. All work and improvements ordered shall be under the direction and supervision of the board, and when it shall make report to the common counoil of its action, the council shall provide for the payment therefor, either from the general fund, or by local assessment, or both, as in this act prescribed. And no such work shall be executed until payment therefor has been provided as required by this act It shall make a special report of any work done or contracted for, when required by the common council or mayor, and a general monthly report to the common council of its transactions for the previous month.”

It appears from the undisputed facts of this case that the defendants, who constituted the board of public works of the city of Buffalo, duly recommended to the common council that Boesch avenue, in that city, should be paved with American bituminous rock pavement; and such proceedings were thereupon had, in conformity to the various requirements of the charter, that the work was let to the relator for the sum named in its bid, to wit, $27,543, and the defendants were directed to enter into a contract with the relator for the performance of such work; but in the exercise of a discretionary power .which, they insist, resides in their board, they have failed to comply with such direction, for reasons which are more particularly set forth in their opposing affidavits. The first question, therefore, which is presented for our consideration, is whether or not the charter of the city of Buffalo invests its board of public works with any discretionary power to act in this matter in disregard of the direction of the common council. A brief examination of such of the provisions of that instrument as have been already referred to will, we think, remove whatever doubt arises as to the power which the legislature intended to confer upon this department of the municipality, and will also make plain the limits sought to be imposed upon its exercise. By the language of section 271, it seems that tll9 board of public works have charge and control of locating, paving? and repaying all streets, except such as are placed in charge of the park commissioners; and the fair import of this language is that it shall exercise a supervisory power and control over the various improvements and work specified,—that is, it shall ascertain, and,, to a certain extent, determine, when any public work is necessary, and shall see to it that, when directed by the common council, it shall be performed in such manner as may best meet the requirements of the city and its citizens ; and, in cases where the-expense of such work does not exceed the sum of $500, it would also seem, by the provisions of section 283, that the board is a. law unto itself, and may require its performance without first obtaining the sanction of the common council; but, on the other hand, this section expressly prohibits it from incurring any expenditure, or entering into any contract,, involving or exceeding' that sum, unless the consent of that body is first obtained. Thus-it will be seen that the right of independent action upon the part of the board is somewhat circumscribed, and a further reference-to section 272 will show quite conclusively that its authority., generally speaking, is subsidiary to that of the common council. When it deems any public work on the streets necessary, it may recommend the same to the common council, with or without, plans, and the latter body may then, in the exercise of its discretion, approve or disapprove such recommendation; and the common council may also direct the performance of any public work: or improvement without the recommendation of the board of public works; but when any such work or improvement is ordered, in accordance with plans, specifications, or descriptions, “ a contract therefor shall be made by the board, except where it is authorized to do the work itself.” And the portion of the section, here quoted from is followed by a provision that all work and improvements ordered shall be done under the direction and supervision of the board. This language seems capable of but one-construction, and that is that the common council is invested by the city charter yrith exclusive authority and control in the matter of directing all public work and improvements, save in the-cases provided for by section 283, while, as has already been shown, the duty imposed upon the board of public works is, in the main, supervisory in its nature. But, with this conclusion-established, it by no means follows that the latter body is utterly divested of all discretionary power, for, in a certain and .limited-sense, this is not so. The charter, it is true, directs that when, the common council orders certain work or improvement in accordance with plans, specifications, or descriptions, a contract, therefor shall be made by the board; but-it is conceivable that, after a public improvement is thus ordered, and before a contract is entered into, there might occur such a change in the condition of affairs as to render it plainly impolitic, and contrary to the-best interests of the municipality, whose servants the commissioners of public works are. to proceed with the same, and can it be claimed that in such an emergency they would be deprived off all discretionary power? This proceeding furnishes an apt ill ustration of the idea sought to be advanced. The application for a peremptory writ of mandamus is met by opposing affidavits, the contents of which, in-the circumstances of the case, must be accepted as true. People v. Cromwell 102 N. Y. 477; People v. Brush, 146 N. Y. 60; 65 St. Rep. 753. And these affidavits show that since the adoption of the resolution by the common council the fact has been brought to the attention of the board of public works that Roesch avenue is quite likely to be soon converted into a boulevard, and make a part of the park system of the city,, in which event it is made to appear that the paving thereof under the existing resolution would be useless, and. would involve the city.in great loss, and that, even if the contract were executed,, the relator could not proceed with the work until the month of May, next, before which time, we are led to infer, it can be definitely determined whether or not the contemplated change is to take place. This condition of affairs certainly demanded some-action upon the part of either the common council, or the board of public works. It would seem, therefore, to require no argument to justify the- commissioners in taking the position they did, and using every precaution which was available to prevent-, the unnecessary expenditure of public moneys; and their action in the premises was but the exercise of the right of judgment in a case somewhat exceptional in its circumstances, but never-■ theless one in which such right must necessarily exist. This justification is the more readily accepted in this case for the reason that the refusal of the board to enter into a contract with the relator can in no wise operate to the prejudice of the latter. Indeed, it is more than doubtful whether it may resort to the remedy invoked for the protection of its interests; for, if it is able to-establish a clear legal right to the contract in question, it has an adequate remedy at law, by action against the city to recover damages, while, if such right is not clear, a writ of mandamus-, is not available.- People v. Campbell, 72 N. Y. 496; Lord v. Thomas, 64 id. 107; People ex rel. Ryan v. Aldridge, 83 Hun, 279; 64 St. Rep. 727 The views here expressed lead to a reversal of the order and a dismissal of the writ.

Order reversed and writ dismissed, with $50 costs and disburse.ments.

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


author: PER CURIAM.

text:
    Samuel S. Hart, App’lt, v. Jones W. Wilder et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)
    Accounting—When maintained.
    An agreement, whereby the defendants undertake to pay plaintiff a. stipulated weekly sum for his services until the business has paid for itself, after- which plaintiff cau, whenever he may elect, take half the profits in lieu of such weekly payment, does not entitle him, after leaving his employment without making any election, to maintain án action for an accounting.

      Appeal from a judgment in favor of defendants entered on a decision of. the court.
    Charles Howard Williams and Cephas Brainerd, for app’lt; Benjamin F. Tracy, for resp’ts.
   PER CURIAM.

The plaintiff, having failed in the New York superior court to obtain an accounting from the defendants on the theory that he was their partner, sought like relief in this action on a theory of an employment which entitled him to a share in the. profits of the printing business carried on' by the parties. But the evidence which he laid before the court in this case'only tended again to show the partnership relation, which the superior court had already adjudged not to exist, and, on the other hand, tended to negative any employment upon the terms stated in the complaint in the present suit. As the learned trial j udge correctly held, if an employment was established at all, it differed materially from that which the plaintiff had pleaded. The only contract of this character which could have been inferred from the proof was the agreement testified to by the defendant Wilder, whereby the defendants undertook to pay the plaintiff $50 a week until the printing office had paid for itself; after which time, whenever he might elect, the plaintiff could take half the profits in lieu of the weekly payment of $50. The plaintiff never made this election, and therefore never became entitled to any portion of the profits. It is argued that the plaintiff could not make this election without knowing the condition of the business, and; therefore, that he is entitled to an accounting now, even oh the agreement as the defendants state it. But his employment, whatever its nature and terms, was ended before this suit was brought, and he cannot have an accounting at this time to enable him to elect in regard to a matter as to which his right of election was gone prior to the commencement of the action. Assuming the contract to have been what the defendant Wilder swears it was, the defendants were doubt- • less bound, while the plaintiff remained in their service, to afford him full information as to the condition of the business, in order that he might know when the printing establishment had paid for itself, and what was the difference between half the profits and his' weekly compensation. The evidence indicates, however, that he must have been tolerably well informed at all times in respect to these matters. The operations of the printing office were carried on under his own supervision; the books appear to have been open to his inspection, and practically under his control; and in 1887, when he demanded a statement showing the financial relations between the printing office and the defendants, he himself says that they furnished such an account. We do not think that he can fairly complain that the defendants kept from him any knowledge essential to an intelligent choice between retaining his $50 a week or accepting half the profits.

The court below found that the plaintiff had been paid by the defendants'at the rate of $50 a week up to the time of his discharge. This finding is supported by the plaintiff’s own testimony .on page 155 of the appeal ¡book. Nevertheless, his counsel claim that his testimony also shows a series of deposits by him with the defendants, upon which they still owe him a balance of $2,400. The statements of the witness in regard to this claim (on pages 52, 87, and 88 of the appeal book) are so vague- and. apparently contradictory that we are at a loss to understand their precise meaning; but it is sufficient to dispose of the matter, so far as the present action is concerned, to say that no such claim is contained or suggested in the complaint.

'The two questions which we have discussed are not noticed in the opinion of the trial judge, and probably were not brought to his attention. We are satisfied with the conclusion he reached, and the reasons assigned for it, The judgment should be affirmed.


text:
    Coldwell-Wilcox Company, Resp’t, v. John W. Sullivan, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    Appeal—Evidence .
    Where the evidence, if believed, justifies the findings of the referee, the judgment will not be disturbed upon appeal.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff.
    J. Stuart Ross, for app’lt; Howard Thornton, for resp’t.
   PER CURIAM.

The only questions presented for our consideration upon this appeal relate to the findings of the referee adverse to the defendant, in respect to the first and third counterclaims set up in the answer. - The plaintiff corporation was engaged in the business of making castings and doing general foundry work, and its claim against the defendant was for labor performed and material furnished in the manufacture of iron castings at his request, which castings were subsequently delivered to him, 'and by him accepted. The patterns from which these castings were made were furnished to the foundry by the defendant; and the dispute between the parties, in the present litigation relates to the terms of the agreement under which they were so furnished. The first counterclaim is based upon the nonreturn of patterns for a condenser, the safety of which the defendant says the plaintiff agreed to guaranty. The agreement in regard to these patterns, as stated by the defendant in the answer, was to the effect that plaintiff would be responsible for and guaranty the safety of ail the patterns for castings for such condenser which this defendant should deliver to this plaintiff; that plaintiff should keep such patterns insured against any loss or destruction by fire, and would make good any loss or destruction thereof.” The third counterclaim is founded, upon the failure of the plaintiff corporation to send back certain other patterns which the defendant alleges he delivered, “ upon the promise and agreement of the plaintiff to be responsible therefor, and to safely return the same to the-defendant.” As matter of fact, the patterns referred to in both counterclaims were destroyed while on the plaintiff’s premises by a fire which, so far as the evidence shows, appears to have occurred without any negligence on the part of the corporation or its agents. Indeed, there is no suggestion of negligence in the brief of the-learned counsel’ for the appellant, who relies solely on the contractual obligation of the plaintiff to insure the patterns, guaranty their safety, and safely return them.

The referee found that, while there was a general agreement that the patterns sent to the plaintiff were to be returned to the defendant after being used, the patterns destroyed by the fire were-in constant use, for the purpose of making castings, and their retention by the plaintiff for that purpose was acquiesced in by the-defendant. The correctness of this finding is not questioned on the present appeal Hence the plaintiff cannot be held liable for not having returned the patterns before the fire. As has already been said, Ho negligence has been imputed to the plaintiff in respect to the fire; and it follows that, if the foundry company is-responsible at all, it is because it made an agreement to insure the-plaintiff’s property while in its temporary custody as bailee, which agreement it has not kept. In behalf of the appellant, it is insisted that the referee’s finding that there was no agreement to insure is not wholly unsupported by evidence, but against the uncontradicted evidence. To pass upon this point fairly and intelligently, it has been necessary to carefully read through the entire-record. After thus reading it, we are unable to assert to the-proposition that there is no evidence to sustain the referee’s conclusion. If he believed the Testimony of the general manager of the foundry, he is quite justified in deciding that there was no promise to insure the patterns; and there was no such preponderance of evidence to the contrary as required him to reject the-statements of this witness. The case comes within the rule laid down in Baird v. Mayor, etc., 96 N. Y. 567, 577, as to the effect, which should be given by an appellate tribunal to the special adaptation of the trial court to weigh conflicting statements and. inferences, when there is evidence on both sides.

The judgment should be affirmed.


author: INGRAHAM, J.

text:
    In the Matter of the Application by Henry Havemeyer et al.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Executob—Removal.
    The fact that the relation of a trustee to his co-trustee and to the beneficiaries of the estate is such that his continuance as trustee will.involve the-estate in much needless litigation and considerable expense, will not alone.justify his removal from the office of trustee.

      2, Same.
    A feeling of'hostility toward the trustee on the part of the beneficiaries, caused by an attempt on>the part of the trustee to manage the estate not authorized by law, or by the will of the testator, will justify his removal.
    3. Same.
    Where one of the executors deposited money of the estate in a bank in his own name, withdrew the same by his own check, payable to himself, and loaned it on call, and made other investments without the consent of his co-executor, unauthorized by law, and appropriated money of the estate to his own use as commissions which had never been allowed, he is properly removed.
    Appeal from an order denying the application for the removal of executor and trustee.
    Adrian H. Joline, for app’lt, Henry Havemeyer; John Brooks Leavitt, for app’lt, Morton; William M. Ivins, for resp’t, Humfreville.
   INGRAHAM, J.

All the beneficies under the will of Mary J. Havemeyer, deceased, united in a petition to the surrogate asking that letters testamentary issued to J. Lee Humfreville be revoked, and that he be removed as executor and' trustee under the last will and testament and codicils thereto of Mary J. Havemeyer, deceased. Annexed to this petition is an affidavit by Edward Kent, who has been appointed as executor and 'testamentary trustee in the place of Agnes J. Burnham, a daughter of the testatrix, in which is set forth the condition of the estate as he found it upon being appointed such executor and trustee, and the proceedings of the respondent; and in which affidavit he states.

“ In my opinion, the only way in which the estate can be protected, the provisions of the will carried out, and the interests of the beneficiaries subserved, is by the prompt removal of Mr. Humfreville as executor and trustee under the will of the deceased.”

In this case every one connected with the estate as benefiiciary, together with the attorneys for those interested and his co-executor and co-trustee, unites in stating that the interests of the estate imperatively demand the removal of the responpent; and an examination of this record shows that the relation of the respondent to his co-trustee and to the beneficiaries of the estate is such that his 'continuance as trustee will involve the estate in much needless litigation, and' considerable expense. It is quite true that this alone would not justify the removal of the trustee. .But when this condition of hostility between those interested in ail estate and its trustee exists, it becomes material to determine whether the feeling of hostility has been caused by an honest endeavor on the part of the trustee to carry out his trust and perform his duties in opposing the wishes of the beneficiaries for an illegal and imoroper disposition of the trust funds, or whether it has been caused hy an attempt of the trustee to manage the estate in a manner not authorized by law, or by the will of the testator, from whom he received his authority to act. If the latter appears, we think that the interest of those concerned in the estate require that the trustee should make way for one who will manage the estate according to the rules prescribed for the management of such estates, and who will act in sympathy with the beneficiaries, rather than in hostility to them. The claim of the respondent that the hostility }shown arises solely from the prejudice against him entertained by Mr. Burnham and existing at the time of the testatrix’s death, would seem to be unfounded. Mr. Burnham was a son-in-law of the testatrix, and by the will was excluded from receiving an appointment as trustee; and it might be that his feeling towards the respondent had been the cause of his hostility and that of his wife and children. But his feeling could hardly have influenced the conviction of all the others interested in the estate, including the attorneys who have represented the parties interested in the estate, and the new trustee appointed in place of Mrs. Burnham, the testatrix’s daughter. This is especially true of Mr. Kent, who was appointed by the court a co-trustee, whose only interest seems to be a proper execution of the trust. The affidavit of Mr. Kent, made a part of the moving papers, details the grounds of his opposition to the respondent, and is entitled to much weight in determining whether or not the rights of those having a beneficial interest in having the estate properly administered require 'the removal of the respondent. It appears to us that that affidavit, taken 'in connection with the explanation of the respondent, shows gross irregularities in the management of the estate by the respondent, calling for emphatic condemnation. In addition to the three express charges made against the respondent, which will be noticed hereafter, the papers show that the respondent has constantly violated the express provisions of the will. The will contained the - following provision:

“And directing them [the trustees] in all things to acts jointly, keeping all bank accounts in their joint names, in which all moneys received from my estate shall be deposited, and all disbursements made therefrom withdrawn by check, signed by both; and no investment, sale, lease, or other change in my estate shall be made except by the concurrence of both my executors and trustees for the time being.”

That this provision was frequently violated by the respondent is conceded, accounts béing opened in his own' name, moneys invested by himself alone without the consent of his co-trustee, and changes made in the estate without her concurrence. The excuse offered by the respondent for this violation of the will, namely, that his co-executor and trustee refused to unite with him in the acts that he considered necessary for the protection of the estate, might be a reason for removing one or both trustees, but certainly is no excuse for a violation of the express directions contained in the will as to the manner iti which the trust should be performed. In considering this general charge against the respondent, it is only necessary for us to say that an examination of this record has satisfied us that the general conduct of the respondent towards his co-trustee and the beneficiaries entitled to the estate, and his management of 'the affairs and property of the estate, has been arbitrary and oppressive, in violation of his duty as trustee and of the express directions contained in the will as to the management of the trust property. This conclusion is much strengthened by the three specific instances adduced by the appellants in which the respondent illegally appropriated or attempted to appropriate the property of the trust estate.

The first is the withdrawal by the respondent from the Holland Trust Company of the sum of $7,000 by a check to his own order on the 4th day of Movember, 1891. In considering this charge, it is proper to notice the apparent claim of the respondent that, as the petition alleges that he applied this money to his own use, that charge must be considered as in the nature of a criminal indictment and that it must be either proved in its entirety or not considered at all in determining whether or not the respondent is a proper person to remain trustee of the estate. This position is certainly a remarkable one to be urged upon an application of this character. We are here considering the question as to whether or not the action of the trustee in relation to the administration of the trust confided to him is such as to require that he should be removed, not as to whether or not he has committed a crime; and the fact that the charge as made is somewhat broader than the proof would justify is certainly no reason for saying that the facts proved should not be considered in determining the question as to the propriety of the removal of the trustee. Mor is the charge at all answered by the fact that, after these proceedings were commenced, the amount was illegally withdrawn was returned by the respondent to the estate. The question is whether he did in fact illegally withdraw a part of the property of the estate; and to that question there can be but one answer. By the respondent’s answer it appears that in the month of February, 1891, he- received \ the proceeds of the sale of Mo. 175 Pearl street, and on that day, in violation of the express terms of the will, he opened an account in the Holland Trust Company in his own name as executor, and thereafter deposited in such account all moneys of the estate received by him, and drew thereupon, by checks signed by him as executor, moneys to pay the current expenses of the estate. Subsequently, on the 4th day of Movember, understanding that the trust company was in difficulties, he picked up in the trust company a blank check, filled it up for $7,000, had it certified, and took it to his office, and put it in his safe; that on the same day, or shortly afterwards, he loaned said sum of $7,000 to one W. A. Storms on call, secured by first mortgage bonds of a railroad company as collateral; that thereafter he continued loaning such sum in the same way until March 1,1892, when $1,000 of said sum was repaid and redeposited in said trust company, but that he continued to loan said $6,000 in the same way until after the commencement of these proceedings. This is the respondent’s own account of this transaction, and he thereby violated the rules of law prescribed for the investment of trust moneys, and the express provisions of the will under which he was' acting. The opening of the account in his own name was itself a violation of the direction contained in the will. His withdrawing that money and loaning it without the knowledge or consent of his co-trustee was an illegal interference with the funds of the estate, entirely unjustified by any condition of the affairs of the estate, and without the slightest excuse. Although his explanation of the transaction may well be viewed with considerable suspicion, yet, accepting it as true, his acts were entirely unauthorized and illegal, while his unfortunate loss of the check, the fact of its not being entered in the check book, and his failure to produce an affidavit of a single person to whom he had loaned money, when he was directly charged with having appropriated it to his own use, might well be regarded by the appellants as a justification of their suspicion that this statement in regard to call loans was an afterthought to cover up the respondent’s appropriating to his own use the property of the estate.

The second specific charge against the respondent—of endeavoring to induce his co-executor to place in his hands the sum of $3,000—is an additional proof, of his management of the estate in violation of the directions contained in the will for its management.

The third charge, admitted by the respondent to be true, is that he has appropriated $1,400 of the estate to his own use for commissions that have not been allowed him, and is a direct admission that he has appropriated to his own use this $1,400 belonging to the estate, without legal authority.

The investment of the money of the estate in the second mortgage bonds of the Ohio Southern Railroad Company was an investment entirely unauthorized by law, and for which there is no possible excuse, and the relation of the respondent to that railroad, with his inability to say whether or not he himself sold the bonds to the estate, confirms the conclusion that he is not a proper person to be trustee of this estate.

A further discussion of the acts of this respondent as executor and trustee would serve no good purpose. It is sufficient to say that upon all the testimony, and giving to the respondent the full effect of 'his explanation of his acts, we are satisfied that he has repeatedly violated the rules as to the management of estates by executors and trustees, by making improper investments of the property of the estate, by violating the express provisions of the will under which he was appointed, and by his general conduct towards the beneficiaries and those interested in the estate, entailing considerable loss upon the estate, and making a proper execution of the trust difficult and expensive so long as he remains executor and trustee, ' Under subdivision 2 of section 2685 of the Code of Civil Procedure, the surrogate is authorized to revoke letters testamentary issued to an executor, “where by reason of his having wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge; or by reason of other misconduct in the execution of his office, or dishonesty, drunkenness, improvidence, or want of understanding; he is unfit for the due execution of his office.” By section 2817 the surrogate is authorized to remove a testamentary trustee where, for the same reasons, it appears that he is - unfit for the due execution of his trust. And we think, upon the undisputed facts appearing in this record, this respondent is shown to be unfit for the due execution of his trust, either .as executor or trustee, and that the application should have been .granted.

The decree appealed from is therefore reversed, and the motion granted, removing the respondent as 'trustee, and revoking the letters issued to him as executor, with costs of appeal and motion to ¡the appellants.

All concur.


author: McADAM, J.

text:
    Louise Andersen, Pl’ff, v. Louis Schesinger, Def't.

      (Supreme Court, New York Trial Term,

      Filed April 8, 1896.)

    1. Pleading—Complaint—Assault and battery.
    To make one person liable for the acts of another, the pleader should show either a relation between them which in law creates a responsibility, or that the person sought to be held became chargeable by reason of participation or some act tantamount to it. So held, where a complaint in an action to recover damages for assault and battery, alleges that defendant and two of his agents entered the premises of plaintiff and that one of the agents assaulted her, but does not allege that the agent, when he made the assault, was engaged in the defendant’s business, or that defendant in any manner participated in or sanctioned the assault.
    2. Same.
    In order to hold the defendant on any other theory, it is necessary for the plaintiff to allege and, if denied, prove, that the acts were done while engaged in the master’s business.
    W. S. Lewis, for pl’ff; Weed, Henry & Meyers, for def’t.
   McADAM, J.

The complaint alleges that on July 20, 1893, the defendant and two of his agents entered the apartments of the plaintiff, and that one of said agents violently assaulted the plaintiff, striking her on the shoulder, and pushing her backward, -whereby she was injured, to her damage $1,000. The presence of the defendant in the apartment does not make him liable, because the facts alleged do not necessarily lead to the implication that he concurred in what was done, or even witnessed it. The plaintiff should therefore have gone a step further, and alleged that the defendant instigated, aided, abetted, or sanctioned the assault; for every fact which a plaintiff must prove to maintain his suit must be distinctly averred. Garvey v. Fowler, 4 Sandf., at page 667; Cole v. Blunt, 2 Bosw., at page 126; Rodi v. Insurannce Co., 6 id., at page 24; Stannard v. Eytinge, 5 Rob. (N. Y.), at page 92. To make one person liable for the acts of another, the pleader should show either a relation between them which in law creates the responsibility, or that the person sought to be held became chargeable by reason of participation or some act tantamount to it. In order to hold the defendant on any other theory, it was necessary for the plaintiff to allege, and, if 'denied, prove, that the acts were done while engaged in the master’s business (Wood, Mast. & Serv. 546): or she might have al leged an assault by the three persons who entered her apartment, for that would have been the legal effect of the wrong, if they were acting in concert. “ By the common law, all are principa}® in an assault and battery, as in other trespasses; and he who counseled, aided, or assisted in any way the commission of a wrong was, in the eye of the law, as much a principal as he who inflicted the blows, and the declaration against him who counseled or aided was consequently the same as against him who actually committed the violence.” Bliss,' Code PI. (2d ed.) § 82» And see Pen. Code, §§ 29, 31. The plaintiff did not adopt any of these courses. She merely alleges- that, the wrong was committed by another, omitting reference to any fact which would make the defendant responsible for the conduct of such other person. Such a complaint is fatally defective when challenged on demurrer. Under the circumstances, the law will not impute to-the defendant an assault and battery upon the plaintiff, which would subject him to criminal prosecution as well as civil liability. Id. §§219, 29, 31.

The objection to the complaint, that it does not state facts sufficient to constitute a cause of action, made in the nature of a demurrer at the trial (Code Civil Proc. § 499), must therefore be? sustained, with costs.


author: LAWRENCE, J.

text:
    James Lawlor, Pl’ff, v. The Magnolia Metal Company, Def’t.

      (Supreme Court, New York Special Term,

      Filed February, 1896.)

    Attachment—Discharge—Sheriff’s fees.
    Under chap: 418 of 1892, amending chapter 523 of 1890, where an undertaking is given by the defendant» for the purpose of discharging the-attachment, under section 709 of the Code, the sheriff may retain the property until his fees are paid by the defendant.
    Motion by defendant for an order directing plaintiff to pay the-sheriff’s fees upon an attachment.
    Constant & Coghill, for pl’ff; Nichols & Bacon, for def’t; Tracv,, Boardman & Platt, for sheriff.
   LAWRENCE, J.

The plaintiff obtained an attachment for $35,710.40, on the ground that the defendant was a foreign corporation. Defendant filed an undertaking, and an order was entered, on the 29th of January, discharging the attachment. - No-exceptions have been taken to the undertaking, but the sheriff refuses to deliver up the property until his fees are paid for poundage and care of the property ; and a motion is now made .by the defendant, upon the undertaking and order discharging-the attachment, that the plaintiff should be directed to pay the-sheriff’s fees, and that such fees be taxed. It is conceded that the plaintiff is entitled to his fees, and the only question is as to the amount thereof.

I confess that, if this question had not been passed upon by the court in other cases, I should incline to the opinion that, where the defendant gives an undertaking, pursuant to the provisions of section 688 of the Code of Civil Procedure, the intention of the legislature was that the undertaking should stand in place of the attachment, and that the same should be in a sufficient sum to-cover the sheriff’s fees ; in other words, that the effect of giving the undertaking, duly approved by the court, and accepted by the plaintiff and the sheriff, would be the same as an absolute vacatur or discharge of the attachment. It has, however, been expressly decided that, under chapter 418 of the Laws of 1892, amending chapter 523 of the Laws of 1890, where an undertaking is given by the defendant for the purpose of discharging the attachment, under section 709 of the Code of Civil Procedure, the sheriff may retain the property until his fees are paid by the defendant. See opinion of INGRAHAM, J., in Bank v. Reichman, 38 Supp. 38; Lawlor v. Magnolia, 38 Supp. 36. In that case the attentions of the learned justice was called to the cases relied upon by the-defendant on this motion, and particularly the case of Bowe v. Reflector Co., 36 Hun, 407; but it was held that those cases did not apply, for the reasons that the attachments therein considered bad been vacated absolutely, and were not discharged because of the substitution of other security. To the same effect is the decision of Mr. Justice BARRETT in Herrera v. Barreto. And see, also, the opinion of ANDREWS, J., in Colberg v. Emerson (Law Journal, March 6, 1894) 61 St. Rep. 833. Section 709 of the Code of Civil Procedure provides that, where a warrant of attachment is vacated or annulled, or an attachment is discharged upon the application of the defendant, the sheriff must, except in a case where it is otherwise specially prescribed by law, deliver over to the defendant, or to the. person entitled thereto, upon reasonable demand, and upon payment of all costs, charges, and expenses legally chargeable by the sheriff, all the attached, personal property remaining'in his hands, etc. I shall follow the construction which has been given to the Laws of 1890 and 1892, and to this section of the Code of Civil Procedure in the cases above referred to, and shall hold that the sheriff is entitled to be paid his fees by the defendant before he can be called upon to surrender the property upon which the attachment has been levied.

It was agreed, upon the argument of the motion, that the parties should stipulate as to the value of the property attached, or, if that could not be done, that an inventory should be taken of the property and the value fixed thereby. I will hear counsel upon the question of the amount of the sheriff’s fees upon the settlement of the order to be entered on this decision.

The motion of the defendant that the plaintiff pay the sheriff’s-fees will therefore be denied, but without costs. Settle order on one day’s notice.


author: BARTLETT, J.

text:
    Elizabeth Baldwin, App’lt, v. William Henry Smith, Individually, and as Executor, etc., Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Surrogate’s court—Jurisdiction.
    The surrogate’s com* is expressly vested with jurisdiction to compel an executor to account for the proceeds of real estate sold under a power in a will; and an executor may render a voluntary account of such proceeds and their disposition, under section 3738 of the Code.
    3. Same.
    So far as it is necessary for the surrogate to construe the will upon such an accounting, in order to make a proper decree of distribution, he possesses the requisite power, even though the will relates to real estate.
    Appeal from a judgment in favor of defendant.
    Mansfield Compton, for app’R; Albert W. Seaman, for resp’ts.
   BARTLETT, J.

The defendant is the executor of the will of. Jacob Baldwin. By that will, the testator bequeated to his sister-in-law, Mary Baldwin, full and complete possession of all his personal property, of every kind, which he had on his farm, for her sole benefit as long as she should live; and he.-directed his executor ■ -to sell so much of the land which comprised his homestead as would be necessary for the support of the said Mary Baldwin. After her death, -the remainder was divided' and bequeathed to various relatives, including Nicholas Baldwin, the brother of the testator, now deceased. The plaintiff is one of the children of Nicholas Baldwin. She brings this suit for an accounting against the executor of her uncle’s will, joining ¿with him, as defendants, all the other persons interested in the estate in remainder. In her complaint, she -alleges that the executor took possession of the homestead premises mentioned in the will, and collected the rents, issues, and profits thereof; that he also took possession of the personal property; and that he has failed to account for the same, with the exception of a very small portion. She further alleges, that, under the supposed power contained in the will, the executor has sold, or pretended to sell, the homestead to one Alfred Loweth for the sum of $1,600, when, in law, he was not authorized, by the terms of the will, to convey more than a part of the premises. ■She charges that this -conveyance was collusive and fraudulent, and made in bad faith, and for an inadequate consideration. In the prayer for judgment, the plaintiff demands that the executor account, at the actual market value of the land, for the proceeds ■of the real estate thus sold, in case the sale be held to be valid, and that he also account for the rents and profits, -and for the per-sonal property of the testator, whether yet reduced to possession •or not. The executor, by bis answer, sets up that, -at the commencement of this .action, a proceeding for the settlement of his accounts was pending in the surrogate’s court of Queens county;; that the plaintiff was a party to that -proceeding, having been duly cited therein; that she appeared and filed objections to the executor’s account; and thereupon “ such proceedings were had that on or about the 28th day of February, 1895, a decree was entered in said surrogate’s court finally judicially settling the account of this defendant as such executor.” The executor denied that he had failed to account for the personal property of his testator, or any part thereof. As to the land, he averred that the estate which Jacob Bald win had in the homestead already mentioned was only one undivided' half part thereof; that a mortgage upon this half part had become past due, so that foreclosure was threatened ; and that thereupon the executor joined with the owners of the other half in the conveyance to Alfred Loweth, from whom he received, therefor $1,619.25, which was a full and fair price, and the best that could be obtained. The answer further contained ■denials of all the allegations of fraud or collision contained in the ■complaint. To that portion of the answer in which the decree of the surrogate’s court was pleaded as a bar to the further prosecution of this action, the plaintiff demurred. Her demurrer was overruled, and she appealed to the general term, which held that the plea in bar was good. Baldwin v. Smith, 91 Hun, 230; 72 St. Rep. 60. The issues of fact have now been tried, and all determined in favor of the defendant executor; and from the judgment entered upon the dismissal of the complaint at special term the plaintiff has appealed to this court.

The learned judge at special term found that-the sale of the homestead was honestly made, for the best price that could be obtained, and without any fraud or evil purpose; and he furthermore found, as matter of law, that the decree of the surrogate upon which the defendant relied was conclusive until reversed. It is the latter conclusion which the plaintiff attacks on the present appeal. At the request of her counsel, the court below found that there were no personal assets in the hands of the executor at ■the time the surrogate’s decree was pronounced, and the contention in behai of the appellant is that the surrogate was without jurisdiction in the proceeding, because the money in the possession of the executor was solely derived from the sale of his testator’s lands. The surrogate’s court, however, is expressly vested with jurisdiction to compel an executor to account for the proceeds of real estate sold under-a power in a will (Code Civ. Proc. § 2726, •subd. 4); and an executor may render a voluntary account of such ¡proceeds and their disposition, under section 2728 of the Code. 'The sale in the present case was ¡made in pursuant to the power •contained in the will of Jacob Baldwin. While that power authorized the sale of only so much of the land comprising the hornestead of the testator ¡as should be necessary for Mary Baldwin’s support, we cannot say that it may not have been necessary to sell the whole of the testator's interest in order to raise a sufficient amount. The record is raiher meager, and does- not disclose what the fact was in this respect. But the surrogate’s jurisdiction may be maintained without determining the character of the power. In re Bolton, 146 N. Y 257; 66 St. Rep 630. It appears to be enough that the- power has- been executed by the accounting party. Nor is it an-objection of any importance that the surrogate may have to pass upon the meaning or validity of & testamentary provision in the course of the proceeding. So far as it is necessary for the surrogate to construe the will upon such an accounting, in order to make a proper decree of distribution, he-possesses the requisite power, even though the will relates to real estate. Garlock v. Vandevort, 128 N. Y. 374; 40 St. Rep. 418; Purdy v. Hayt, 92 N. Y. 446. This power is in no respect questioned or denied in Re Merriam, 136 N. Y. 58; 48 St. Rep. 897, cited in behalf of the appellant. In that case the question related to the jurisdiction of the surrogate to'inquire into the validity of a testamentary gift of real estate in the proceeding for the probate of the will which contained it, — a matter very different from the-incidental power to construe a will,' which is often essential as a prerequisite to a distribution of the property. In re McComb, 117 N. Y. 378; 27 St. Rep. 259, also on appellant’s brief, is not an authority in her favor, but a case in which it is expressly declared that an executor must account' in the surrogate’s court for the proceeds of real estate turned into- money.

The special term was right in holding that the decree of the surrogate’s court was conclusive upon the plaintiff herein, and the-judgment below should be affirmed.

All concur.