author: Per Curiam. Dykman, J. (dissenting).

text:
    Frederick J. Stubing, Resp’t, v. The Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Appeal from an order denying a motion to set aside the service of a summons.

      Arnoux, Bitch & Woodford (Wm. H. Arnoux and John Me G. Qoodale, of counsel)-, for app’lt; David Swits, for resp’t.
   Per Curiam.

Order affirmed, with costs, on opinion of Pratt, J., in Mullins v. Met. L. Ins. Co., 60 St. Rep. 240; 28 N. Y. Supp. 959.

Dykman, J. (dissenting).

This is an appeal from an order of the city court of the city of Mt. Yernon, in Westchester county, denying a motion to set "aside the service of the summons in this action. The defendant is a domestic corporation, with its principal office in the city of New York. This action was commenced in the city court of Mt. Yernon, and the summons was served personally upon Henry Wall, who was a local superintendent of the defendant, in its industrial branch, and was in charge of the Mor-. risania district. His duty was to oversee the soliciting agents of the defendant in his district, receive from them the money they collected, and forward the same, with the accounts of the agents, to the home office of the defendant. He was clothed with no power to employ or discharge agents, make contracts, or control or direct any portion of the business of the defendant. The question is whether the court obtained jurisdiction of the defendant by the service of the summons personally upon Wall. According to the provisions of § 481 of the Code of Civil Procedure, personal service of the summons upon the defendant must be made by delivering a copy thereof, within the state, to the president, secretary, or clerk, cashier, treasurer, or director, or managing agent of the corporation. As Wall was neither of the officers named in the statute, unless he was the managing agent of the company, it is only necessary to determine whether he sustain that character. The same question has been before presented to us, but, as the facts differ in each case, one decision is seldom an authority for another; and while the statute is plain, and free from ambiguity, its application is not always easy. All persons who are employed by corporations are their agents, in a general sense, because those bodies are intangible, and must act by and through agents and servants; and, as Wall was in the service of the company, he was its agent, for some purposes. It is not, however, sufficient for us to determine that Wall was an agent of the company. What is required of us is to determine whether he sustained such a relation to the defendant as to authorize the service of a summons upon him for the commencement of an action against it. It was the intention of the legislature to require more than simple agency, to clothe an individual with a character that would justify such service upon him, because the statute has the word “managing” prefixed to the word ‘ ‘agent” Management pre-supposes guidance, control, direction ; and the restriction of the word “agent” by the qualifying word “managing” manifests an intention to employ the phrase “managing agent” to designate a person clothed with general power, as contradistinguished from an ordinary agent, who is not required or authorized to exercise judgment or discretion ; to distinguish one acting independently from one subject to control and direction from snpreme authority. The statute was designed to provide a simple and convenient mode of serving a summons upon a corporation, and at the same time to require such service to be made upon ' a person who would comprehend the importance of the service, and bring it to the attention of the .superior officers, to the end that the company would not suffer from inattention to the same. That end would be attended with much more certainty by requiring the service to be made upon a general agent, instead of an inferior servant Such being the requirement of the statute, it is evident that Wall did not meet the demand. His duties were quite restricted in their extent, and the scope of his action was quite limited. He had no independent authority. He performed his services under the direction of the officers, in pursuance of certain written regulations. He was an inferior agent, destitute of any pow.er of management or direction Ho act of bis was binding upon the defendant. We find no- adjudicated case in which a service has been held valid where the facts are in any way. similar to those in' this case. The case of Brewster v. Mich. C. Railroad Co., 5 How. Pr. 185, is an authority in favor of the appellant. The same may be said of the case of Flynn v. Hudson R. Railroad Co., 6 How. Pr. 308; Emerson v. A. & O. L. Railroad Co., 13 Hun, 150. It is to be-observed, however, that the later decisions upon this question do not require as .wide range of authority as the earlier cases, to constitute a person ,a general agent, within the meaning of the statute. In the case of Brewster v. Mich. C. Railroad Co., for instance, it was held that such an agent must be one who is engaged in the management of the corporation, as distinguished from a particular branch or department thereof. Ho one person has the charge of the entire business of a corporation, and therefore it seems now to be sufficient to constitute a person a managing agent, within the statute, if he be invested with general power involving the exercise of judgment and discretion. Service has been held valid upon the general superintendent of the work of operating the lines of a telegraph company, Barrett v. Am. Tel. & Telephone Co., 56 Hun, 430; 31 St. Rep. 465; Id., 138 N. Y. 491; 53 St. Rep. 86; upon the division superintendent of a railroad company. Rochester, H. & L. R. Co. v. New York, L. E. & W. R. R. Co., 48 Hun, 190; 15 St. Rep. 686. The reason for requiring the service of the summons upon a corporate agent of a high grade is the natural inference that such positions will be occupied by persons of experience and discretion, who would be more certain to appreciate the importance of prompt attention to such an important legal process, and bring it immediately to the attention of the company, and so prevent any mistake or default. An agent of the grade of Wall does not answer the requirement of the statute in that respect. .The order should therefore be reversed, with $10 costs and disbursements, and the motion to set aside the service of the summons granted, with $10 costs.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Hester A. Tompkins, Resp’t, v. William H. Tompkins, App’lt.

      (Supreme Court, General Term,, Second Department,

      Filed May 14, 1894.)

    Pleadings— General denial — Proof.
    In an action to recover an alleged loan, the defendant may, under a general denial, show the agreement under which he claims to have received it.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    .. Francis Larkin, for app’lt; William P. Fiero, for resp’t.
   Brown, P. J.

The complaint in this action set forth as a cause of action a loan of a sum of money by the plaintiff to the defendants, and non-payment thereof after demand. The answer was a general denial of the complaint, except as to the allegation of demand and non-payment. Upon the trial, upon cross-examirv:tu;i of the plaintiff, and upon the direct examination of the defendants, questions were aslced for the purpose of showing that the money was given to the defendants under an agreement, by which they were to board and take care of the plaintiff and her sister, who were respectively the mother and aunt of the defendant William H. Tompkins. This evidence was excluded upon plaintiff’s objection, on the ground that it was inadmissible under the pleadings, and the exception to this ruling presents the question upon this appeal. Under a general denial the defendant may contradict any evidence given by the plaintiff in support of the cause of action alleged in the complaint. Milbauk v. Jones, 141 N. Y. 340 ; 57 St. Rep. 429, and cases cited; Roemer v. Striker, 142 N. Y. 134; 58 St. Rep. 615. He is not confined to a simple denial of the facts testified to on behalf of the plaintiff, but he may introduce .any evidence which tends to show the transactions between the parties to be different from what the plaintiff claims it to be. The plaintiff alleged and testified that the transaction with the defendants was a loan of money. Under a general denial, defendants were entitled to show the agreement under which they claimed to have received it. The cases cited by the respondent have no application. Bassett v. Lederer, 1 Hun, 274, and McKyring v. Bull, 16 N. Y. 297, were cases where defendants sought to prove payment under a general denial. This defense must always be pleaded. Lent v. N. Y. & Mass. Railroad Co., 130 N. Y. 504-511; 42 St. Rep. 592. Weaver v. Barden, 49 N. Y. 294, was an action to compel the transfer of stock to the plaintiff. The court held that under a general denial defendant could not prove he was a bona fide purchaser of the stock, for the reason that that fact had no tendency, to contradict anything which plaintiff was bound to prove to sustain his case. These cases do not conflict with the rule here applied.

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


author: Pratt, J.

text:
    G. A. Van Kleeck et al., Resp’ts, v. Dutchess County Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Railroads—Farm-crossings.
    In deciding whether a crossing should be required, the cost to the company, as compared with the benefit to the land owner, is to be taken into consideration.
    Appeal from a judgment in favor of plaintiffs.

      Milton A. Fowler, for app’lt; Hufcut & Travis, for resp’ts.
   Pratt, J.

This is an appeal from a judgment rendered at a trial before a judge without a jury. The action was brought by the plaintiffs, who own a farm through which the defendant took a strip of land, by condemnation, for its railroad, to compel the defendant to build a crossing under its railroad for stock at one point, and a bridge over its railroad for teams and stock at another, in addition to certain crossings already built by the opany. From the proofs before the court, it is difficult to perceive any necessity for a bridge over the railroad at all, and it is also very questionable whether any more cattle culverts are required for the reasonable use of the farm owned by the plaintiffs. There is no such amount of travel over a farm crossing as to justify the great expense of building a bridge over a railroad. It is well settled t.hat the cost to the railroad, as compared with the benefit to the land-owner, is to be taken into consideration, in deciding whether a crossing shall be required. Jones v. Seligman, 81 N. Y. 190-196; Wademan v. A. & S. Railroad Co., 51 N. Y. 568. The interest of neither party is to control, but the power to compel the building of proper crossings and culverts is to be exercised in a proper manner, having due regard to the convenience of the owner of the land, and without subjecting the railroad to extravagant, burdensome, and unreasonable expense. The question is one that depends upon the facts and circumstances of each particular case, the location of the lands, and the needs and necessities of the owner. While he is to be reasonably accommodated, the railroad must be justly and equitably dealt with. What the expense would be to make the improvements demanded by the plaintiff was a material fact, which the court below refused to find. This we think, was error. It was also error in refusing to find the heighq details, and cost of overhead bridge, with approaches, and also cost and kind of- under-crossing for cattle.

There are n'umerous exceptions remaining, but we only notice one other, to wit, in permitting a non-expert to answer the following question, “ Is -it practical to build a bridge there, over that railroad, at a reasonable expense? ” No one but an engineer, or a man experienced in bridge building or kindred work, could intelligently answer such a question. Besides, the answer decided the issue in the case.

It seems to us, in view of the above reasons, and the fact that the defendant has already built three grade crossings within about a third of a mile, and that to comply with the demand of the plaintiff will entail great expense and hardship upon the defendant, there ought to be a new trial.

Judgment reversed, and new trial ordered; costs to abide the event. -

All concur.


author: Brown, p. J.

text:
    Caroline Veit, App'lt, v. Elvira Dill, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Deed—Effect.
    A deed of “all the dower * * * and other rights ” of the grantor, conveys all the interest of every kind that the grantor may have.
    Appeal from a judgment dismissing the complaint and awarding relief to the defendant.

      Thomas H. Williams, for app’lt; Wm. B. Hurd, Jr., for resp’t.
   Brown, p. J.

This action was brought in form of the specific performance of a contract for the sale of land, but really to recover the expense incurred in the examination of the title on the ground that the defendant, who was the vendor, could not convey a marketable title. The defendant acquired title to the land in. question from John Moore. Moore’s title came from Mary Doyle and seven children of herself and her husband, John Doyle, The Doyle title was acquired in 1867, under a deed made to John and Mary, in which there "were no words showing any intent on their part to hold as tenants in common. John Doyle died in 1881. The case presented is one where the parties appear to have been misled by the case of Meeker v. Wright, 76 N. Y. 262. Mrs. Doyle, after her husband’s death, contracted to sell the land to Moore. Upon the authority of the case cited it was assumed that Doyle and his wife held as tenants in common, and that the husband’s estate, upon his death, descended to his children, subject to the wife’s dower. Two deeds were accordingly executed and delivered to Moore. One conveyed the estate of Mrs. Doyle and three adult children in and to ten-fourteenths of the land, and the other conveyed four-fourteenths assumed to be vested in four infant children, and in this share Mrs. Doyle released her dower. The decision of this case rests upon the construction to be placed upon the latter instrument. The appellant claims it is a conveyance of the dower only, while the special term has decided that it was a conveyance of all her estate, whatever it might be. We agree with the trial court. The conveyance grants, releases, conveys, and quitclaims “all the dower and third and right and title of dower, * * and all other right of me, the said Mary Doyle, in an to,” etc. The intent of Mrs. Doyle, under the contract, to convey the whole land, is clear, and she received the consideration expressed in the agreement. It is equally clear that she intended by the instrument from which I have quoted to convey not only her dower, but all other rights she had in the land. The instrument was, in effect, a quitclaim deed, and the language used was appropriate to vest in the grantee all estate she had in the land.

The judgment should be affirmed, with costs.

All concur.


text:
    Josephine Whitlatch, Resp’t, v. Fidelity and Casualty Company of New York, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Insubance—Accident—Suicide.
    The defense of suicide, in an action on an accident policy, must be @3 tablished by a preponderance of evidence.
    Appeal from a judgment in favor of the plaintiff.

      Charles C. Nadal (Thomas S. Moore, of counsel), for app’lt;; Thomas Darlington (John L. Ilill, of counsel), for resp’t.
   Pratt, J.

The cause has been twice tried, and is reported in 71 Hun, 146; 54 St. Rep. 191. The rule was then laid down that, upon the pleadings, the burden of proving death by suicide rested upon the defendant. Upon the trial now under consideration. the circuit judge applied the rule, as given him by the general term, and the result was in. favor of the plaintiff. • Upon the facts there was but one question for the jury; that was whether the death of Whitlatch was the result of accident or suicide. No one was present when the pistol was discharged. Each party tried to produce evidence that would shed light upon the condition of Whitlatch’s mind before his death. Neither party claimed him to have been insane. We think it can be safely spd.that nothing was shown that would justify a jury in finding a "verdict that the deceased intended to commit suicide. The court charged that, to find a verdict for defendant, the jury must be satisfied, by a preponderance of proof, that Whitlatch intentionally took his own life. We think that'was a correct statement of law. The common experience of mankind teaches that suicide is not an ordinary mode of death. The natural instinct of self-preservation is opposed to it. It is also a breach of the criminal law. No jury should be allowed to find one guilty of such a violation of law— of such a perversion of the ordinary rules of human action—except upon a preponderance of proof. We think the circuit judge correctly stated the rules of law, and that the requests to charge proposed by defendant, if granted, would have been more liable to mislead the jury than to guide them aright, and were properly refused.

Judgment affirmed, with costs.

All concur.


text:
    Yonkers Savings Bank, Resp’t, v. William H. Kinsley, as Executor, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Executors—Conveyance in payment of mortgage debt.
    Where an executor takes a conveyance of land in satisfaction of a mortgage debt, the land is personalty as between the executor and the parties interested in the estate.
    Appeal from a judgment in favor of plaintiff.

      Burrill, ZabrisMe & Burrill, for app’lt; Thayer & Small, for resp’t.
   Pratt, J.

This is an appeal from a judgment of foreclosure and sale, entered at special term on December 9, 1893. The faqts and circumstances connected with the,execution of the mortgage are, briefly stated, as follows: The mortgaged premises were formerly a part of the estate of Hudson Kinsley, who died at the city of Yonkers March 26, 1868,, leaving a will which was duly admitted to probate by the surrogate of the county of Westchester, April 11, 1868, and letters testamentary thereupon were duly issued to Stephen H. Thayer, one of the executors named in the will. By said will the testator, gave all his estate, real and personal, to the executors, in trust to put the whole, or the net proceeds thereof, into a productive shape, and to invest all moneys not wanted for immediate use in bonds and mortgages of real estate and in other specified securities, and to dispose of the same as particularly directed in said will, with full power and authority to sell and dispose of any and all of the real estate, and to give deeds and conveyances therefor. Under the power of sale in the will, the executor, on the 5th day of November, 1868, conveyed the premises described in the complaint, with other premises, to John T. Waring, for $16,000, $6,000 of which was paid in cash, and the balance — $10,000 — was secured by a purchase-money mortgage to the executor upon the premises conveyed. Waring made default, and the executor, Stephen H. Thayer, commenced an action to foreclose the mortgage. That action was settled by the conveyance by Waring to Thayer of the mortgaged premises with other property, the executor, Thayer, talcing the deed in his own name individually. On the 10th day of December, 1880, the said Stephen H. Thayer mortgaged the premises described in the complaint, being a portion of the premises so reconveyed to him by Waring, to the Yonkers Savings Bank, the plaintiff, to secure a loan of §3,000. It was agreed by the parties that the proceeds of this mortgage should be applied to the payment of taxes upon the premises described in the complaint, and the other premises reconveyed by Waring, as above stated. Stephen H. Thayer died on the 15th day of January, 1890, the defendant William H. Kinsley qualified as an executor under the will of Hudson Kinsley, deceased, and the executor, widow, and heirs at law of Stephen H. Thayer conveyed to the said William H. Kinsley, as such executor, the premises described in the complaint, and the other premises which had been reconveyed by John T. W aring, as above stated, the mortgage to the Yonkers Saving Bank being still open. On the 24th day of October, 1891, the interest on this mortgage being in arrears, this action was commenced. No question was made upon the trial as to the propriety or validity of the arrangement between Mm Thayer and Mr. Waring, or as to the bona fides of the transaction. The following stipulation was also produced upon the trial, to wit:

“ Exhibit A.

“For the purposes of this trial it is admitted and stipulated as follows: (1) That all the allegations of fact contained in the complaint, excluding conclusions of law, are true as therein set forth, except that the defendants do not concede that anything is due the plaintiff on the mortgage, or that the interests of the defendants accrued subsequently to the lien of the mortgage. It is admitted, however, that the amount unpaid upon the bond set forth in the complaint is the sum of $8,000, with interest thereon from the 1st day of June, 1889. (2) That all the allegations of fact contained in the answer of the defendant William H. Kingsley, excluding conclusions of law, are true as therein set forth. (3) That the defendants do not question the propriety and validity of the agreement between Mr. Thayer and Mr. Waring set forth in the answer, which resulted in the conveyance to Mr. Thayer therein mentioned. (4)That the money advanced by the plaintiff upon the bond and mortgage set forth in the complaint was advanced for the purpose of paying taxes upon the mortgaged premises mentioned in the answer, and was so applied under the supervision of the mortgagee, as follows :

Redemption from sales for taxes of 1876 and 1877.. $1,633 76

Taxes of 1878................................ 395 25

do do 1879......-.......................... 419 12

do do 1880................................ 352 69

Total.......................'............. $2,800 82

“ The balance of the $3,000 borrowed from the plaintiff was applied by Mr. Thayer towards the payment of the taxes for 1881 upon the same property, and the amount of these taxes—71 per cent.—was assessed against the premises described in the mortgage, and the residue against the other property reconveyed by Waring to Thayer. (5) That the personal estate of Hudson Kinsley, deceased, in the hands of Mr. Thayer, amounted to $70,000 ; that there was income therefrom to an amount larger than the amount of said-taxes, which income was paid, as it accrued, to the legatees under the will. (6) That, subsequent to the death of Mr. Thayer, his heirs and legal representatives executed and delivered a deed purporting to convey and release the mortgaged premises and the other premises mentioned in the answer to the defendant William H. Kingsley, as executor and trustee under the will of Hudson Kinsley, deceased.”

The defendant is met on the threshold of his case by the fact that the loan this mortgage was given to secure was for the benefit of'the estate, and in absolute good faith. There is therefore no justice or equity in the defense. Assuming that there was a conversion of the land sold to Waring, there never was any reconversion, as, when land has once been converted into personalty, it requires an election or intention to reconvert to restore it to its original condition. There is no question made but that the executor made a valid sale to Waring,.and it is clear that the bond and mortgage he topk as security was personal property. And whether he received money or took land in payment was immaterial. He was only accountable to the estate for his conduct. This subject has been exhaustively examined by the court of appeals in Lockman v. Reilly, 95 N. Y. 64. In that case the court, per Rapallo, says : “It may happen that an executor or administrator, without authority, invests the funds of the decedent’s estate in land, or he may take land in payment of a debt due to the estate which he represents, or may purchase it for the protection of the estate at an execution sale under a judgment belonging to the estate. The legal title to the land is in the executor or administrator; but, as between him and the legatees, next of kin, and creditors of.the deceased party, it is personal estate, and he holds it as the legal representative of the deceased. That land bought in by executors on a foreclosure of a mortgage belonging to the estate is to be treated as personal property, which the executors may sell, and for which they are accountable as such, has been frequently decided, and it is immaterial whether the deed is taken in the names of the executors as such, or in their individual names. Clark v. Clark, 8 Paige, 152 ; Schoonmaker v. Van Wyck, 31 Barb. 457; Valentine v. Belden, 20 Hun, 537 ; Cook v. Ryan, 29 Hun, 249. In all these cases land thus purchased by' an executor or administrator is regarded as a substitute for the mortgage foreclosed, and takes its place for all purposes, as between the executor or administrator and the parties interested in the estate. It is not treated as land belonging to the testator. His heirs or devisees take no direct interest in it, and cannot dispute the title of a purchaser" from the executor, though no power of sale be contained in the will. The heirs of an intestate cannot question the title of a purchaser from his administrator who has purchased land under such circumstances. Long v. O'Fallon, 19 How. 116 ; Williams, Ex’rs, 650, noted.”

There can be no doubt, if the foreclosure of the mortgage from Waring had proceeded to sale, that Thayer could have purchased it in, and taken title in his own name, subject only to an accounting to the’ estate. But even assuming, for the sake of argument, that Thayer held the land as real estate subject to a trust, even then equity will sustain the mortgage, as at the time he had no trust funds on hand, and the mortgage was made for the safety and protection of the trust estate. New v. Nicoll, 73 N. Y. 127; Payne v. Wilson, 74 N. Y. 348. See also case of McLean v. Ladd, 66 Hun, 341; 50 St. Rep. 48, and cases there cited. We think that receiving the deed from Waring in payment of the mortgage was the same, in effect, as if Thayer had purchased it at foreclosure sale, and that, having taken title in his own name, he had full power to mortgage, subject to account to the legatees under the will. Judgment affirmed, with costs. All concur.


text:
    John Ziegler, App’lt, v. George W. Pearsall et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May, 14, 1894.)

    Appeal—Harmless error.
    An error, which does not prejudice the appellant, furnishes no ground for reversal.
    Appeal from a judgment in favor of defendants.

      James Henderson (Simon Sultan, of counsel), for app’lt; James C. Church, for resp’ts.
   Pratt, J.

We have examined this case with great care, and have arrived at the conclusion that it was rightly decided at the circuit upon the merits. The evidence was conflicting, but it presented a case that a jury might well regard as having no foundation in justice ^or equity. There is only one exception that requires any comment. The claim was for services rendered a testator in her lifetime, which had been assigned to the plaintiff. The assignor was a Mrs. Harris, who claimed to have rendered the services; and the most important witness to prove the services was Miss Harris, her daughter. The judge, in commenting on the evidence, stated that Miss Harris was naturally interested in her,,mother’s' claim, to which remark an exception was taken. Strictly speaking, perhaps, that was error; but we cannot see that the plaintiff was prejudiced thereby. On the contrary, it clearly appears that he was not prejudiced. The substance and intent of the charge was that the jury were at liberty to pass upon the credibility of the testimony, which was entirely proper. Taking into consideration her cross-examination, and the evidence of the defendants, it was a case that had to „be submitted to the jury, and the credibility of her testimony passed upon. There was no possibility that the words used by the judge could have misled the jury, as all the facts as io her relation to the parties and the case were fully developed to, and understood by, the jury. The charge was not that Miss Harris was interested in the result of the suit, but was a remark simply to call attention to her relation to the principal party to the claim. In truth, she was naturally interested for her mother, but not pecuniarily interested, and no intimation of the latter kind was suggested by the charge.

The whole charge, taken together, was correct and impartial, and the verdict evidently just.

The claim for rent was equally without foundation; as matter of fact, testator never occupied the room at all; and, upon the assignee’s own showing, the room was given up on the 20th of April,—at least eight weeks before the termination of'said alleged letting—but only three weeks’ credit was allowed upon the bill. This transaction seems to characterize somewhat the motives of the assignor in making up her claims. The verdict was just, and the judgment must be affirmed, with costs.

All concur.


author: Herrick, J.

text:
    Sigmund Ashner, Resp’t, v. Daniel H. Deyoe, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Fraud—Rescission.
    Where the possession of property is obtained by fraud and misrepresentation, its title is not changed, and the vender can retake it from any one npt a bona, fide purchaser.
    2. Same—Chattel mortgagee.
    A mortgagee, whose chattel mortgage was executed to secure a preexist isting debt, is not a bona fide purchaser.
    3. Appeal—First instance.
    The objection that replevin does not lie for property taken under attachment cannot be raised for the first time on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      T. F. Hamilton, for app’lt; Henning & Me Call (J. L. Henning, of counsel), for resp’t.
   Herrick, J.

This is an appeal from a judgment against the defendant, awarding to the plaintiff possession of certain tobacco, and, in case the same is not delivered to the plaintiff, that then the plaintiff recover of the defendant the sum of $551.50, the value of said property, and also the sum of $44.20 damages for the detention thereof. It appears that the plaintiff sold the tobacco in question to one Metzner, about the 1st of July, 1891, on a credit of four months. About September 23, 1891, certain creditors of Metzner’s, claiming that he was removing and disposing of his property with the intent to defraud his creditors, obtained an attachment against Metzner’s property. Under such attachment the defendant, as sheriff, levied upon the property of said Metzner, seizing, as a part of the same, the tobacco in question in this action. The plaintiff brought his action in replevin against the sheriff to obtain possession of the tobacco, alleging that the same was obtained from him by false and fraudulent representations and statements made by Metzner as to his financial condition, and that the said tobacco was purchased by Metzner with the intent not to pay for the same, and with the intent to defraud and cheat the defendant out of his property, and that, upon the discovery of such fraud, he (the defendant) dis-affirmed the sale, and made a demand upon the sheriff for said tobacco in the sheriff’s possession. The property was replevied from the sheriff by the coroner. The plaintiff in the attachment proceedings executed and delivered to the coroner a proper undertaking for that purpose, which was approved by the coroner, and the tobacco returned to the possession of the defendant. Upon the trial, evidence was submitted by the plaintiff of the false and fraudulent representations made by Metzuer at the time of the sale of the tobacco, and by which the plaintiff was induced to make such sale; and the jury, by their verdict, have found that issue in favor of the plaintiff, and there was evidence to justify such finding; .and for the purposes of this appeal it may be taken as established that Metzner, by false and fraudulent representations, induced the plaintiff to part with the possession of the tobacco in question, with the intent not to pay for the same, and with the intent to cheat and defraud the plaintiff out of his property therein. The action was commenced on the 23d of September, 1891. On the 19th of September, 1891, Metzner gave a chattel mortgage on the tobacco in question to the First National Bank of Saratoga Springs to secure the payment of certain notes then held by the bank to the amount of $1,237, Metzner being the maker of one of the notes, and the indorser upon four others. There was no agreement that, by the giving of the chattel mortgage, such notes should be delivered up to Metzner, nor were they in fact delivered to him at that time. The next day, however, after giving the chattel mortgage, the bank gave Metzner such notes, and took Metzner’s own note in lieu thereof. At the time of the giving of the chattel mortgage, the bank did not advance or give anything to Metzner therefor, and in his testimony Metzner says: “I gave the mortgage for the sole purpose of securing the notes then held by the bank, upon which I was liable as maker or as indorser.” At the close of plaintiff’s case, the defendant moved for a dismissal of the complaint upon the ground that it “affirmatively appears by the proof that the legal title to the goods in question is in the First National Bank of Saratoga Springs, and that, upon plaintiff’s own proof, he cannot recover in the action.” This motjon was denied. And again, at the close of the whole case, “ the defendant’s .counsel asked to go to the jury upon the question whether or not, by the terms of the agreement under which the mortgage was received, and the five notes surrendered, and Metzners’s own note taken therefor, were not a transaction by which the bank surrendered valid security, and became a bona fide holder'of the mortgage for value.” This request was denied. I can see no reason for a reversal • of the judgment in this case. Metzner having obtained possession of the property by fraud and misrepresentation, and with the intent not to pay for the same, but with the intent to cheat and defraud the plaintiff out of his property therein, the title to the property was not changed, and the plaintiff could retake the same from any one not a bona fide purchaser. Hotchkin v. Third Nat. Bank, 127 N. Y. 329-338 ; 38 St. Rep. 754; Devoe v. Brandt, 53 N. Y. 462. The bank does not stand in the position of a bona fide purchaser. It did not give anything for the mortgage, and the debt that the mortgage was executed to secure was a pre-existing one, and the mortgage executed as security therefor gave it no right to hold the property as against the owner, who had been deprived of the possession thereof by fraud. Barnard v. Campbell, 58 N. Y. 73; Nat. B. & D. Bank v. Hubbell, 117 N. Y. 384-398; 27 St. Rep. 396.

No question is raised upon this appeal but that the plaintiff, within a reasonable time after the discovery of the fraud upon him, commenced proceedings to recover his property; neither is there any question raised as to a proper' demand having been made by him for the possession thereof. The appellant does, however, raise the question that, such property having been seized under an attachment, the same was in the custody of the law, and that the plaintiff has mistaken his remedy; that his action, if any, should have been for' conversion, and not for replevin—and cites the case of Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496, to sustain his contention. The case cited is in point, and, if it were not for other considerations, I would feel constra'ned to hold that the judgment should be reversed. But the question so presented is raised for the first time in this case on appeal. It was not suggested in the court below. The case was there tried upon the question as to whether there had been in fact any fraudulent action on the part of Metzner towards the plaintiff, and as to whether the bank, under this chattel mortgage, had a title to the property; and, as we have seen, the only question raised by the defendant upon the motion for a nonsuit at the close of the plaintiff’s testimony was that arising under the chattel mortgage to the plaintiff, and the only question upon which the defendant requested to go to the jury was that arising out of the same chattel mortgage. Under such circumstances, I do not think the defendant should be permitted to avail himself of an objection to the form of the action, now raised for the first time. Having tried the case upon another theory, he must ba considered to have waived that objection. To hold to the contrary would be justifying a practice which is misleading to the trial courts, and an injustice to the parties. Salisbury v. Howe, 87 N. Y. 128 ; O' Neill v. N. Y., O. & W. Railway Co., 115 id. 579-584; 26 St. Rep. 269.

The judgment should be affirmed, with costs.

Mayham, P.o J., concurs ; Putnam, J., not acting.


text:
    John H. Bame, App’lt, v. Anton Seykora, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894)

    1. Justice's court—Replevin.
    Replevin will lie in justice’s court without proceedings to replevy the ciukel before judgment.
    2. Same.
    A prima facie title and right to possession entitle plaintiff to recover where the defendant’s possession is unexplained.
    Appeal from a judgment in favor of defendant.

      Jacob IF". Ch.de, for app’lt; Louis H. King, for resp’t.
   Herrick, J.

An action to recover the possession of a chattel may be brought before a justice of the peace, without taking proceedings to require the replevining of the chattel before judgment. Code Civ. Proc. §§ 2919, 2933, 3038; Delin v. Stohl, 2 Civ. Proc. R. 222; Guyon v. Rooney, 25 St. Rep. 326 ; 6 N. Y. Supp. 99. The plaintiff established a prima facie title, and the right to the possession of the property in question, against every one except a bona fide purchaser. There is no evidence in the case to show how the defendant came into the possession of the property—» whether he stole it, took it for debt, or purchased it. Plaintiff having established a prima facie title and right to the possession of the property, it is incumbent upon the defendant to show how he came into the possession of it. The judgment of the county court should be reversed, and a new trial ordered, costs to abide the event.

All concur.


author: Herrick; J.

text:
    William J. Barrett, App’lt, v. Charles W. Johnson, Resp t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Pleadings—Statute of frauds.
    Where the statute of frauds is not pleaded as a defense, and evidence of a parol contract is received without objection, the defendant is in no position to take advantage of the statute at the close of the trial.

      2. Statute of frauds—Debt of another.
    An agreement by a partner to pay personally an additional compensation to a firm employee, to induce the latter to continue his services, is not a promise to answer for the debt or default of another.
    Appeal from a judgment dismissing the complaint on its merits.

      T. F. Doherty (IF. L. Hickey, of counsel), for app’lt; F. S, Black, for vesp’t.
   Herrick; J.

The plaintiff brought his action against the defendant, in the justice's court, to recover the sum of $49, alleging in his complaint that on or about the 1st day of February, 1891, he was in the employ of the firm of 'Salisbury & Johnson; that at that time plaintiff was receiving from said firm a salary of $12 per week; that he then notified defendant, Johnson, that he would no longer work ,for that amount,-and that, unless the said firm would increase the salary to $14 per week, he would quit their employ; that said Johnson then informed him that he would increase his salary $1 per week from said firm, and he (said Johnson), personally, would pay to plaintiff $1 per week additional, if he would remain in the employ of said firm during a period of six months from that time; that, about the expiration of said six months, plaintiff spoke to Johnson in regard to his salary, and Johnson said they would continue under the same arrangement for another six months; that the plaintiff continued in the employ of the defendant during the balance of said term, but that the defendant has never paid him the amount of $1. per week, amounting to the sum of $49. The plaintiff recovered judgment against the defendant in the justice’s court, and the defendant thereupon appealed for a new trial in the county court, he having pleaded a counter-claim for more than $50. At the close of the testimony in the case, the court nonsuited the plaintiff “ upon the ground that, from the testimony of the plaintiff, it appears that the contract, if any, entered into between the plaintiff and defendant was a contract to answer for the debt or default of the co-partnership firm of Salisbury & Johnson, and that the same was not in writing, and therefore void, by the statute of fraud.”

The complaint of the plaintiff and the answer of the defendand were both in writing. The defendant, in his answer, did not pleat jbhe statute of frauds as a defense, although, as will be seen from the substance of the complaint, as hereinbefore stated, he was fully apprised of the nature of the plaintiff’s claim. Neither was there any objection made by the defendant, upon the trial, to the exception of the evidence establishing the contract by parol. This was error. The statute not being pleaded as a defense, and the evidence which established the parol contract having been received without objection, the defendant was not in any position to take advantage of the statute at the close of the trial. Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659. In addition, however, it may be stated that if the plaintiff’s version of the contract, as given by him upon the trial, is correct, then the defendant did not agree to pay the debt of another, but entered into a contract of his own, and for which he was personally responsible, as the original contractor. The judgment of the county court should be reversed, and a new trial ordered, costs to abide the event.

All concur.


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    Agnes Cameron, as Administratrix, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Master and servant—Competent servants.
    It is the duty of the master not only to secure competent servants, but also to see that they remain competent.
    A Same.
    He is chargeable with any damages resulting from habitual or frequent lapses from competency, if he has notice of such conduct, or if, by a reasonable supervision of those employed in his service, he could have acquired notice or knowledge of such carelessness or neglect of duty.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes of the court. D

      F. L. Westbrook (Ashbel Green, of counsel), for app’lt; John M. Gardner, for resp’t.
   Herrick, J.

The plaintiff’s intestate, Allan Cameron, was of about the age of twenty years, and had been in the employ of the «defendant as a brakeman for about a year prior to his death by the accident in question. The train upon which he was employed started from Kingston, on defendant’s road, on the morning of the 7th of May, 1891. On arriving at Marlborough—a station about twenty miles south of Kingston—it passed onto a switch or freight track, and stopped in front of the freight depot. At this point on defendant’s road there are two main tracks,—one known as the “ south-bound track,” and the other the “ north-bound track.” On the west of these two tracks is a side track for freight, and a side track to a gravel pit, and on the east of the main tracks, and between them and the Hudson river, there is another side track. At the time in question there was on the side track to the gravel pit a car to be taken out, and put on the other track, and a car was to be taken from the freight train on which young Cameron was •employed, and left at Marlborough. On the side track east of the main tracks were a number of cars, one of which was to be taken and attached to this freight train, and taken away as part of it. While the freight train was at this depot, an express train known as “ No. 11 ” passed by on the easterly or north-bound track, carrying signals indicating that it was followed by another train running on the same time Schedule, and entitled to the same timetable rights as the train carrying the signals. Before No. 11 had passed, the conductor of the freight train had told the brakernen what was to be done as to leaving and taking on the cars already spoken of. After train No. 11 had passed, the conductor of the freight train gave directions not to cross until the second section which was following No. 11 had gone by. At this point there is what is called a “cross-over switch,” by which cars may be switched from one track to the other. Before the second section of train No. 11 had gone by, Cameron and a brakeman named Norton went across the main tracks to the switch east of the main tracks, where Norton told Cameron which car was to be taken from it. They then started, to go back. Norton opened the crossover switch at the north-bound track, and left it open. He then went towards the westerly main track, that being towards the south-bound end of the switch, with the intention of opening that end of the switch, but before he got there, hearing the engine that was following train No. 11 coming up the track, he started to close the switch he had opened, but did not arrive there in time, and the engine passed over the open switch on the south-bound track, and ran into the cars standing thereon. Intestate, Cameron, who was engaged with those cars, was jammed by the collision, -and was so injured that he subsequently died.

Rule 117 of the defendant’s rules and regulations provides that “ whoever opens a switch shall remain at it until it is closed, or until lie is relieved by some competent employe.” The brakeman Norton was familiar with these rules, and had a copy of the rules and regulations for the conduct of defendant’s employes in his possession. Rule 4 reads: “Every employe of this company whose duties in any way are prescribed by these rules must always have a copy of them on hand, and must be conversant with every rule. He must render all the assistance in his power in the carrying of them out, and must report any infringement of them to the head of his department.”

Norton had been in the employ of the defendant over a year and a half, and was promoted to brakeman, and had been employed as brakeman for some eight or nine months prior to the happening of this accident. He was a witness upon the trial, and testified that' he had been in the habit of operating switches in the manner in which he operated the one in question on the day of the accident for eight or nine months,—that is, opening them, and then going away and leaving them open; that he did it almost daily. It is conceded that leaving the switch open'was the cause of the accident. At the close of the plaintiff’s case, the trial court, in denying the motion for a nonsuit, announced that the only question to be determined was the incompetency of Norton; and that was the principal issue, and indeed the only issue, finally presented to the jury for their consideration in determining the liability of the defendant. It is conceded that Norton was at the time of his employment, and at the time of his promotion to the position of brakeman, a competent man, and the questionds, assuming his story to be true, whether the violation of the rule habitually indulged in by him rendered him an .incompetent man, and whether the defendant had notice of his habitual disregard of the rule in question. Norton’s own testimony shows him to have been an incompetent servant. “A competent man is a reliable man,—one who may be relied upon to execute the rules of the master unless prevented by causes beyond his control. Hence incompetency exists not alone in physical or mental, attributes, but in the disposition with which a servant performs his duties. If he habitually neglects those duties, he becomes unreliable, and, although he may be physically and mentally able to do well all that is required of him, his disposition towards his work, and towards the general safety of the work of his employer and to his fellow servants, makes him an incompetent man. ” Coppins v. N. Y. C. & H. R. R. Co., 122 N. Y., 557-564; 34 St. Rep. 214. It is true that when Norton was hired, and when he was promoted to the position of brakeman, he was a competent man. But the duty of the defendant did not end there. Not only is it its duty to secure competent men, but it must see to it that they remain competent; and for that purpose it must maintain a vigilant watch and superintendence over its men, justas it does over its tracks, engines, and cars. Of course, having procured competent and reliable men, it is not answerable for the first lapse of duty by reason of the carelessness or negligence of the men so hired; but, when it becomes habitual or of frequent occurrence, then it is chargeable with any damages resulting therefrom, if it has notice of such conduct on the part of its employe, or if it, by a reasonable supervision of those employed in its service, could have acquired notice or knowledge of such carelessness or neglect of duty. Upon the trial the defendant produced the division superintendent having charge of that division of the road where the accident happened, and other officers or employes of the defendant, superior in rank to either Norton or Cameron, who all testify that they had no knowledge, and had never heard, of any neglect of duty by Norton, and had never heard of his alleged practice of leaving switches after he had opened them. Railroad corporations can only receive notice of the .condition of their roads and the conduct of those employed by them, through their officers; and for the purposes of this case it will be assumed that the defendant, by the testimony produced upon the trial, established the fact that it had-no actual notice of the manner in which Norton discharged his duties. But that is not sufficient to relieve it from responsibility. If the careless discharge of his duty was continued for such a length of time that a careful and diligent supervision of its employes ou'ght to have brought it to its notice, then it is chargeable with knowledge. Whittaker v. D. & H. Canal Co, 126 N. Y., 544; 38 St. Rep. 523. The jury having found, as it must have found, that Norton neglected his duty in the manner heretofore detailed,—that he was accustomed to violate the rules of the defendant in that particular,—it was a question of fact, proper to be submitted to them, whether such violation of the rules and habitual neglect of duty had been so frequent and long continued as to satisfy them that a careful supervision would have brought it to the knowledge of the defendant; which necessarily included in it the further question of fact, did the defendant so diligently supervise the work of its employes as to prevent their becoming negligent and careless in the discharge of iheir duties, and violating the rules of the defendant established, for their guidance ? These were questions of fact proper to be submitted to the jury, and I do not think that the trial court erred in refusing to nonsuit, and permitting the case to go to the jury. No exceptions appear to have been taken to the manner in which the issues to be determined by them were submitted to the jury.

I do not think the court erred in admitting evidence that employes of the road knew Norton’s habit of violating the rule in question. While knowledge by Norton’s coemployes of his violation of the rules was not necessarily notice to the defendant, yet I think it was competent to prove that such violation was not secret, but was open and frequent. It was evidence that properly might be taken into consideration by the jury upon the question as to whether, if the defendant had diligently supervised its employes, it would not have discovered such neglect of duty.

For these reasons, the judgment, I think, should be affirmed, with costs.

All concur.


text:
    Henrietta Childs, Resp't, v. New York, Ontario and Western Railway Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Negligence —Cause.
    To recover in an action for negligence, the accident must be the immediate or proximate cause of the injury.
    2. Same.
    A party is not entitled to recover for an injury resulting from bis own imprudent action.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Wdliam Vanamee, for app’lt; Linson & Van Burén (John J. Iiinson,- of counsel), for resp’t.
   Herrick, J.

On the 3d day of July, 1890, the plaintiff, a widow lady, in company with her father, her little child, and a friend, named Miss Smith, started from Middletown, a station on the defendant's railroad, to go to Purdy’s, another station on defendant’s road, there to spend the 4th of July with a relative of the plaintiff, who lived in that vicinity. ' Miss Smith purchased the tickets for herself and the plaintiff. When the train reached Fair Oaks, a station about two miles distant from Purdy’s, the trainman, by some unexplained blunder, announced it as Purdy’s, and the plaintiff and her party, supposing it to be their destination, got out of the train. Almost immediately upon alighting her father discovered the mistake, and said to the trainman, “This is Fair Oaks,” and that they should riot be left there. The trainman said that they had moved the station, and that it was Purdy’s, and the train immediately moved on. Fair Oaks, it seems, is what is called a “ milk station.” There was a small building there, partially open at the sides, in which milk cans were deposited. About 50 feet distant is a feed store, and a short distance from the feed store, arid next to it, is a building described as an office.” The proprietor of the feed store seems to have acted as the agent of the defendant at that place, selling tickets for passage over defendant’s road, and his office being used as the waiting room. At a distance of between 200 and 250 feet from the station, there was a farm house, and at a distance ot' from 400 to 500 feet from the station was an hotel. At the time that the plaintiff and her party alighted at the station there was present a "brother of the proprietor of the féed store, named Wallace, who had charge of it and the defendant’s business at that station, in his brother’s absence, and the son of the hotel proprietor. It was about 7 o’clock in the evening when they alighted from the train, and it was raining, a thunder storm passing over the place at the time. After some little consultation the plaintiff and her party proceeded to walk to Purdy’s, by way of the railroad tracks, and they arrived at her uncle’s house at about 9 o’clock in the evening. The plaintiff had been afflicted for a number of years with some uterine difficulty, which, it was testified to, affected her ankles, so that at intervals, for a period of about fifteen years before this occurrence, she had been compelled to wear steel braces for her ankles, but had not been wearing them for about two years prior to the time in question. The walk from Fair Oaks to Purdy’s, and her exposure to the rain during such journey, prostrated the plaintiff for the time being, and brought on a recurrence of her old difficulties, from which she had not recovered at the time of the trial. Upon the trial, defendant procured evidence to the effect that before plaintiff started to walk from Fair Oaks to Purdy’s, Wallace called the attention of the party to the fact that there was an hotel there where they could get accommodations for the night, which were declined, and that then he informed them that he had a team there, and would take them to their destination, which was also-, declined; and also testimony that, as they started on their walk, the proprietor of the farmhouse called to them, and offered to take charge of them over night, and take them to their destination in the morning, without charge. The plaintiff denied that there was any offer to take her to her destination, denied that she was informed of the fact that there was an hotel there, where she could be accommodated, and denied that she heard the farmer offer to take charge of them over night. From the manner in which the court submitted the case to the jury, it must be assumed that the jury found in favor of the plaintiff upon those questions. The plaintiff testified that she did not know of the existence of any hotel there, or of any farm house, and that she made no inquiries and no effort to ascertain whether there was any place where she could be taken care of over night; but, without making any inquiries for or effort to secure lodgings for the night, started ont on foot for Purdy’s. The court charged the jury : “ In view of the fact that there was here at this station this hotel and this house, it is for you to say whether she did and the party did that which was prudent under the circumstances, if they made up their minds to go on to Purdy’s in that rain, without stopping at least to inquire whether there was near at hand a place where they could be protected over night. That subject is one that the court has refused to pass upon as a matter of law, and one which he submits to the jury, and which you are to carefully consider, weigh, and pass upon. And if you find that the plaintiff acted prudently in that wnich she did, if you find that she was not neglectful of herself and her condition in failing to make these inquiries touching a place of rest and shelter during the storm and the night,—if you reach that conclusidn,—if you reach that conclusion that under all the information which she had and which was in her possession, and all the circumstances surrounding it, she was fully justified, as a prudent person, in taking the course which she did in going on to Purdy’s, then she is entitled to recover at your hands such a sum, if any, in damages as you think she may have suffered by reason of taking that trip.”

This portion of the charge was excepted to by the defendant, and exceptions were also taken during the trial to the reception of evidence, raising the same' questions,—that is, as to whether the plaintiff was entitled to recover damages for the injuries sustained by her by her walk from Fair Oalcs to Purdy’s and her exposure to the rain during such walk.

The plaintiff relies upon the case of Ehrgott v. Mayor, etc., 96 N. Y. 264, to sustain the proposition contended for by her. In that case: “The jury found that the diseases from which the plaintiff suffered were the direct result both of the accident [the breaking of the axle, and his falling over the dashboard] and the subsequent exposure, and that the effect of the exposure was simply to increase and aggravate the injury received from the accident.”

“The jury found that the plaintiff wras blameless for the subsequent exposure, and therefore, so far as that operated in causing injury to the plaintiff, it was a cause for which he was not responsible. There were, according to the finding of the jury, two causes operating to produce plaintiff’s injuries, each of winch was essential to produce the results. The accident without the exposure, and the exposure without the accident, would not have caused them.”

And the opinion proceeds: “When several proximate causes contribute t.o an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless, without its operation, the accident would not have happened. Here, as I understand the findings of the jury, the plaintiff’s injuries would not have been suffered but for the strain and shock of the accident. While both causes were proximate; that was the nearest and most direct. Still further, it was certainly impossible for the plaintiff to prove or for the jury to find how much of the injury was due to either cause alone. It was wholly impossible to apportion the damages between the two causes.”

In this case the plaintiff arrived at Fair Oaks station safe and sound. She suffered no physical injury in alighting at the wrong-station. W hen she started on her walk from Fair Oaks to Purdy’s, nothing had been done by defendant which rendered her physical system unusually susceptible to injury, either from the walk or from exposure to the rain during the walk, wherein it essentially differs from the Ehrgott Case. Again, in that case there were two concurrent causes, —the injuries received by the accident and the subsequent exposure, naturally under the circumstances resulting from that accident. In this case there is only one ; and it seems to me that the only question that arises is as to whether the plaintiff's' walk, and the exposure which, caused her sickness, were the natural consequences of the defendant’s fault in leaving her at the wrong station. Tire plaintiff undoubtedly has the right to recover all damages naturally resulting from the defendant’s fault, and for any discomfort or inconvenience suffered by her therefrom ; but there was also a duty resting upon 'her to conduct herself prudently in the situation in which she had been placed, so that those ■discomforts and inconveniences should not be unnecessarily increased, and to so conduct herself that no danger should be unnecessarily run by her. If she acted imprudently, and as a result of such imprudence suffered injury, then she is not entitled to recover for the injury resulting from her own imprudent action. The fact that the defendant had placed her in a position where she had an opportunity to act imprudently does not justify her in so acting.

While it is a question for the jury to determine what are the natural copsequences of the defendant’s fault, and they are to determine whether she acted prudently in the situation in which she was placed, or whether by her own imprudence she brought upon herself the injury from which she'is suffering, still in reaching their conclusions upon such questions there are limitations to their power in-that respect. While they have the right to determine whether the injury from which the person is suffering is the natural result of an accident that is not necessarily sufficient, they must find that the accident is the immediate or proximate cause -of sucli injury.

The question of contributory negligence is one for the jury to pass upon. Still they are governed by certain rules of law in that respect to guide their action; as, for instance, a person approaching a railroad crossing must look and listen for approaching trains, and the jury are not at liberty to say that he is not guilty of contributory negligence in the absence of evidence that he has taken such precautions. So, in determining the question of prudence it must not be a mere arbitrary determination on their part, but one limited and guided by law; and it seems to me that the court •en'ed in refusing to find as a matter of law that it was the plaintiff’s duty, under all the circumstances, to inquire whether there was near at hand a place where she could be protected over night, before she started on what was to her a dangerous journey by foot; and submitting the question of prudence without limitation or restriction to the jury. The plaintiff, as we have seen, had been suffering from physical disability at intervals for about 15 years. She knew that any undue exercise or exposure would bring on a recurrence of such difficulty. She is left at a station in the evening, during a rain storm, some two miles distant from her destination; and it seems to me that, as a matter of law, it was her duty, before she undertook to walk there, with her precarious health, and in a storm, to make some inquiries whether she could procure any conveyance there, and if not, whether there was any convenient place in the vicinity where she could be cared for over 'night; and that, failing to make such inquiries, and blindly and heedlessly undergoing the fatigue of the journey by foot, and the exposure to the elements, when there were places near at hand where she could have been cared for during the night, she is' not entitled to recover damages for the injuries resulting from such exposure. The judgment should therefore be reversed, and a new trial granted, costs to abide the event.

Putnam, J., concurs; Mayham, P. J., concurs in result.


text:
    Sarah A. McCluskey, Resp’t, v. National Life Association of Hartford, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Insurance — Life — Payment of premium.
    Where the insured is authorized to send a premium by mail, it is paid' when the letter containing it is deposited in the post office, addressed to the company.
    Appeal from a judgment in favor of plaintiff, entered on a trial before the court without a jury.

      Shuart & Sutherland ( W A. Sutherland, of counsel), for app’lt; 0. A. Dennis, for resp’t.
   Herrick, J.

The plaintiff was the beneficiary of a policy of life insurance, issued to Thomas McOluskey. The defendant is a foreign insurance company, having its principal or home office at. Hartford, Conn. It seems to have had no agent at Whitehall, in this state, where the said Thomas McOluskey resided. On the-10th day of September, 1892, the defendant mailed a notice from Hartford to the said McOluskey, notifying him that his bimonthly premium of $7.90 was due and payable on or before the 1st day of October. Inclosed in the notice was an envelope directed to the defendant, which the assured was requested to use in sending his remittance. The notice also directed all checks and post-office orders to be made payable to the Rational Life Association. On the afternoon of the 1st day of October the assured inclosed said notice, together with a check for $7.90, payable to the order of the defendant, in the envelope received by him from the defendant, and deposited it in the post office at Whitehall. It was received at the Hartford post office on October 2, 1892, at 8 p.. m. October 1, 1892, was Saturday. On the 3d of October, 1892, the defendant mailed a notice to Thomas Me Oluskey, calling upon him to forward a certificate as to his health, and that upon doing so his policy would be reinstated. The assured, in response thereto, informed the defendant that he could not truthfully sign the required certificate of health sent him by such company. On the 15th day of December, 1892, the assured, Thomas McOluskey, died. The defendant, among other defenses to the claim made against it upon said policy, asserted that the policy was forfeited by the failure of the assured to pay the bimonthly premium due October 1st. The law does not favor forfeitures. The defendant directed the assured to send his premium by mail, and his sending ifc by mail by its direction would be sufficient, even although the money had never been actually received by it. ’ Palmer v. Phoenix Mut. L. Ins. Co., 84 N. Y. 63 ; Kenyon v. Knights’, etc., Association, 122 N. Y. 247-260; 33 St. Rep. 467. When a person directs money, or the evidence of money,—as checks, notes, or merchandise,—to be transmitted or shipped to him by mail, or by a specified line of carriers, it has always been held that the responsibility of the sender ceased upon his delivering the articles to the specified carrier, and that they were thereafter at the risk of the person who directed them to be sent to him by meams of such carrier; that he thereby made the carrier his agent. It may be said, therefore, in this case, that the defendant made the post-office authorises at the place of residence of the assured.its agent to receive from him the payment of the premium in question. If it had had an agent stationed at that place, and the assured had given him a check for the amount of the premium in question on the 1st day of October, although the defendant had not received it at its home office until the 2d or 3d, I assume that no question would be raised but what such payment was made in time. If, instead of having a regularly appointed agent at such place, to whom payments could be made, they directed, in lieu thereof, that they should be transmitted by mail, it seems to me that depositing a check in the post office, payable to the order of the defendant, properly enveloped, and directed to it, on the day of payment, is equally as good a payment as though the same check had been deposited on the day of payment with the local agent. Payment was made at the time the money, or that which, under the notice issued by the company, could be given in lieu of money, was deposited with the company’s agent, which in this particular case was the United States postal authorities. It has' been held that a contract by correspondence was completed when the party to whom the promise was made placed a letter in the post office, accepting the terms. Taylor v. Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411-424. Upon the same principle it seems to me that payment was made when the check was deposited in the post office.

The defendant upon this appeal raises the question that in cases of this kind the plaintiff must allege in his complaint, and prove on the trial, either that there is a sufficient fund on hand to meet the plaintiff’s claim, or some part thereof, or else, that an assessment duly issued would produce a sufficient amount to meet his claim, or some part thereof. Without discussing the question as to whether the rule contended for and supported by the case of O'Brien v. Home Ben. Society, 117 N. Y. 310; 27 St. Rep. 326, and kindred cases, is applicable to causes of action upon policies of the kind involved in this action, it is sufficient to say that the defendant made no objections to the plaintiff’s complaint upon the trial, but proceeded to trial upon the merits, and did not raise this question, so far as it appears in’the record before us, either by motion, request to find or exception; and having failed to raise the question in the trial court, he cannot raise it here. Whitman v. Foley, 125 N. Y. 651; 36 St. Rep. 133.

Judgment should be affirmed, with costs.

All concur.


text:
    Agnes Mickee, as Administratrix, etc., Resp’t, v. Walter A. Wood Mowing and Reaping Machine Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Master and servant—Liability for contractor.
    The master is not liable for neglig-mce on the part of a contractor, which renders unsafe the place where he puts his servant to work, unless he had notice of the danger or, by reasonable care and watchfulness, could have acquired knowledge.

      Hinsclill Parsons (6r. B. Wellington, of counsel), for app’lt; Martin & Kelly {Olin A. Martin, of counsel), for resp’t.
   Herrick, J.

— At the time of the accident which gave rise to this action, the defendant was engaged in laying some railway tracks upon its premises. Alongside-of these tracks, and about four feet distant therefrom, at the point where the accident happened, there was a building in process of erection for the defendant, and upon its premises. On the third floor of the building, on a beam or plate upon which the third floor lay, were a number of upright posts of spruce timber, about ten inches square and about ten feet long, and about fifteen feet distant from each other, which were to support, as I understand it, the fourth floor of such building. While the plaintiff’s intestate was engaged in laying the railway tracks alongside of such building, one of these posts fell upon him, and caused his death. This case has once before been to this court upon appeal. 70 Hun, 456; 53 St. Rep. 689. Upon the former trial, no evidence was offered upon the part of the defendant, but a judgment of nonsuit was granted at the close of the plaintiff’s case, and this court held that, uponzthe facts as then they appeared, the nonsuit was erroneously granted, and that the case should have been submitted to the jury. The case, as it now appears, differs in essential particulars from that before the court upon the former appeal. It then appeared : “ That this post had stood there three or four days before it fell. 70 Hun, 458 ; 53 St. Rep. 689, and there was no evidence shown that the post had been guyed or secured, and, as was then stated, it needs no evidence to show that a stick set up on end of the dimensions of the one by which, the injury was inflicted, unless the same was well guyed or secured, was liable to fall.” 70 Hun, 456 ; 53 St. Rep. 689.

It now appears in the case that this building was being erected for the defendant in pursuance of1 a contract with one Charles A. Russell, who employed the men who were at work thereon, and paid them ; that said Russell was a contractor and builder, who had been engaged in such business for eighteen or twenty years; that the post in question was raised and placed in position Saturday afternoon; that it was stayed and secured in the following manner : “There was a hard-pine block nailed onto a stringer, and the post was nailed onto that and nailed to the bottom and stayed both ways. The stay was an inch board, about eight inches wide, nailed on, and a stay lath nailed to a cleat that was nailed to the floor, and another one to the top of the post and the outside of the building.”

After the post was erected, some of the men employed went up to the top of it by means of a ladder set up against it. One of the men testifies that he went up three different times. As before stated, the post "in question was erected Saturday afternoon, and the following Monday, between 8 and 9 o’clock in the morning, plaintiff’s intestate was killed by its falling upon him. The reason of its falling does not appear. There is some testimony that there was a strong wind blowing at the time, and the assumption is that the post was blown over by such wind. It will thus be seen that the case is presented in quite a‘different aspect from what it was upon the former appeal. The defendant is not liable for any negligence in the erection of the post, or for any injury resulting from such negligent construction, the building being in process of construction by an independent contractor. Devlin v. Smith, 89 N. Y. 470; Butler v. Townsend, 126 id. 105; 36 St. Rep. 508; Wyllie v. Palmer, 187 N. Y. 248; 50 St. Rep. 706. But it is said that the defendant has failed to perform its duty to plaintiff’s intestate in not furnishing a safe place in which to work. The duty of the master to furnish a safe place in which his servant may-work is not an absolute duty. “ He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place.” Harley v. Buffalo Car Mfg. Co., 142 N. Y. 34; 58 St. Rep. 437. He is not an insurer of the safety of the place or an insurer of his servant against injury. As was said in Butler v. Townsend, 126 N. Y. 105; 86 St. Rep. 508: “A place in its broad sense is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become, an insurer.” The duty of the master is discharged by furnishing, not qn absolutely, but a reasonably, safe place, and by the exercise of reasonable care and watchfulness in keeping it safe. To render him liable there must be some positive fault on his part, either of commission or omission. “ The liability of the master for injuries to the servant received in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or, what is equivalent thereto, in order to justify a verdict, and he is entitled to the presumption that he has performed this d,uty until the contrary is made to appear.” Crown v. Orr, 140 N. Y. 450-453; 55 St. Rep. 834. It is culpable negligence which makes the master liable, not a mere error of judgment. Harley v. Buffalo Car Mfg. Co., 142 N. Y. 35; 58 St. Rep. 437.

The place where the plaintiff’s intestate was working appears to have been a safe place, except as it was made dangerous by the negligent erection, if it was negligently erected, of the post which fell, and for that, as we have seen, the defendant was not liable; neither can it be held liable for the dangerous condition in which such negligent erection placed the premises where plaintiff’s intestate was employed, unless it had notice of such danger, or, by reasonable care and watchfulness, could have acquired knowledge. It is not claimed, nor is there anything in the evidence to show, that the defendant had any actual notice of any negligent or improper erection of the post which fell; indeed, from the manner in which the post was secured, guyed, and braced, and the tests to which it was subjected, after it was erected, by persons repeatedly climbing up upon it, it appears to have been reasonably well secured. It was done under the supervision of a man who had been engaged from eighteen to twenty years in the erection of buildings. But assuming it to have been negligently placed and insufficiently stayed, in the absence of actual knowledge of that fact on the part of the defendant I dp not think that there is anything in the evidence by which we are entitled to say that it had constructive notice, or that there has been an omission of duty ©n its part in not ascertaining the negligent placing of the post. It was placed in position Saturday afternoon, and then was so securely in position that men could climb up upon it, and the following Monday, between 8 and 9 o’clock in the morning, it fell. These facts being uncontradicted, it does not seem to me that there is anything in them from which we can hold that the defendant by inspection could have acquired knowledge of any defect or unsafe condition, or that sufficient time had elapsed within which we can say that it ought to have acquired knowledge, and hence had constructive notice. For these reasons the judgment should be reversed, and a new trial granted, costs to abide the event.

Mayham, P. J., concurs in result; Putnam, J., concurs.


author: Gray, J.

text:
    The Rochester Distilling Company Resp’t, v. Asa Rasey App’lt.

      (Court of Appeals,

      Filed June 5, 1894.)

    1. Mortgage—Chattel—Things not in existence.
    A chattel mortgage can operate only on property in actual existence at the time of its execution.

      2. Same—Executory agreement.
    If a mortgage on non-existing things operates as an executory agreement to give a lien, some further act is necessary, when the property comes into existence, in order to make it an actual and effectual lien as against creditors.
    3. Same—Crops.
    That, which is the annual product of labor and of the cultivation of the earth, has neither an actual nor a potential existence before a planting.
    Appeal from order of the general term of the supreme court in the fifth judicial department, made October 4, 1892, which reversed a judgment in favor of defendant entered upon a verdict directed by the court and granted a new trial.
    In February, 1890, the plaintiff recovered a judgment against one Lovell for $147.44. In April, 1890, Lovell, being the lessee of certain farm lands, in order to secure one Page as an accommodation indorser and for the repayment of money borrowed from him, executed and delivered to him a chattel mortgage; which covered “ the grass now growing upon the premises leased etc. ; also all the corn, potatoes, oats and beans, which are now sown or planted, or which are hereafter sown or planted during the next year etc.” At the time, but a small part of the land had been planted with potatoes, and the greater part of the planting of potatoes, and all that of the' beans, which was done in the following month. On July 5th an execution was issued upon plaintiff’s judgment, and the sheriff levied upon the growing crops and advertised their sale in August; at which sale plaintiff purchased them. After the levy by the sheriff, Page, the chattel mortgagee, on July 15th foreclosed under his mortgage, gave notice and sold the growing crops to the defendant. Defendant took possession of the property so purchased and this action was brought to recover its possession. The trial judge, being moved by each of the parties for a verdict in his favor, directed it for the plaintiff as to the beans and for the defendant as to the potatoes and ordered the exception taken to that direction to be heard, in the first instance, at the general term. That court sustained the plaintiff’s exception to the ruling of the trial judge and ordered anew trial; but allowed an appeal to this court, on the ground that a question of law was involved which ought to be reviewed.

      Be Merville Page, for app’lt; George D. Reed, for resp’t.

       Affirming, 48 St. Rep. 301.

   Gray, J.

I think this case- does not, in principle, differ from any other case, where a chattel mortgage has been given upon property in expectancy and which has no potential existence at the time of its execution. The fact that the subject of the mortgage is a crop to be planted and raised in the future ppon land does not affect the determination of this question upon established principles. It may be that precisely such a case, in its facts, has not been passed upon in this court; but there are expressions of opinion, in several cases of a kindred nature, in the reports of this court and of other courts in this state, which leave us in no doubt as to the doctrine which should govern. The proposition that a mortgage upon chattels having no actual, nor potential, existence, can operate to charge them with a lien, when they come into existence, as against an attachment, or an execution creditor, has frequently been discountenanced and repudiated. Grantham v. Hawley, Hobart, 133, is the general source of authority for the proposition that one may grant what he has only potentially, and there is no good reason for doubting that that which has a potential, or possible existence, like the spontaneous product of the earth, or the increase of that which is in existence, may properly be the subject of sale, or of mortgage. The right to it, when it comes into existence, is regarded as a present vested right. That which is, however, the annual product of labor and of the cultivation of the earth cannot be said to have either an áctual. or a potential existence before a planting.

'This action being one at. law, the inquiry is limited to ascertaining the strictly legal rights of two contending creditors to the property of their debtor, Powell, in the crops which he had raised. It is unlike some of the cases, which have arisen between the lessor of land and his lessee. In such a case, a different principle might operate to create and support the lien of the landlord upon the crops, as they come into existence upon the land. The title to the land being in him, an agreement between him and the lessee fora lien upon the crops tobe raised, to secure the payment of the rent, would operate and be given legal effect, as a reservation, at the time, of the title to the product of the land. That was the case of Andrew v. Newcomb, 32 N. Y. 417, where the "owner of land agreed with another that he might cultivate it at a certain rent; the crop to remain the property of the landlord,' until the tenant should give" him security for the rent. Judge Denio repudiated the idea that the arrangement could be called a conditional sale of the flax; because the subject was not in existence. He held that the idea of a pledge or of a sale had no application and that the effect of the contract was to give to the landlord the original title to the crop. His remarks upon the subsequent vesting of the title to crops, when they come into being, have reference to such an agreement between landlord and tenant and not to the case of a mortgage, or conditional sale to some third person of crops yet to be planted. Mr. Thomas, in his work on Chattel Mortgages, upon the subject of mortgaging a crop not yet planted, says (§ 149) “the weight of authority inclines to the view that the lien is an equitable one and differs, in some respects, from the charge created by a mortgage of property in existence at the date of the agreement; ” and, again, he says “the authorities are many to the effect that such a mortgage conveys no title or interest as against attaching, or judgment creditors of the mortgagor.” About this question of mortgaging personal property, to be subsequently acquired, much has been written in- the books, which I deem unnecessary to resume here at any length. It results from a review of the authorities that a mortgage cannot be given future effect as a lien upon personal property, which, at the time of its delivery, was not in existence, actually or potentially, when the rights of creditors have intervened. At law such a mortgage must be conceded to be void. The mortgage could have no positive operation to transfer in proesenii property not in esse. At furthest, it might operate by way of a present contract between the parties that the creditor should have a lien upon the property to be subsequently acquired by his debtor; which equity would enforce as against the latter.

In Bank of Lansingburgh v. Crary, 1 Barb. 542, Paige J. observed: “ I strongly incline to the opinion that a chattel mortgage can only operate on property in actual existence at the time of its actual existence at the time of its execution; that it cannot be given on the future products of real estate; that if given one day or one week, before the product of the land comes into existence, it is as inoperative as if the chattel mortgage had been given on a crop of grass or grain, one, two, or three years previous to its production.”

In a subsequent case, the same learned judge considered the nature of a mortgage relating to property not then in existence and its effect as to creditors of the mortgagor. In Otis v. Sill, 8 Barb. 102, the plaintiff claimed under a chattel mortgage which, after-describing the property mortgaged, contained the following clause: “ All scythes manufactured out of the said iron and steel and all scythes, iron, steel and coal which may be purchased in lieu of the property aforesaid. ” Subsequently, the property was taken under executions issued on judgments and the action was brought for its taking and detention. Paige, J. refers to his opinion in Bank of Lansingburgh v. Crary, that a chattel mortgage could only operate on property in actual existence at the time of its execution. He elaborately discusses the question of whether such a mortgage was a lien upon the property when acquired, as against the creditors of the mortgagor, and reviews very many authorities in England and some in this country. His conclusions were adverse to the proposition. He held that, as to subsequently acquired property, the mortgage could only be regarded as a mere contract to give a further mortgage upon such property and that no specific lien was created thereby. He says, “I have come to the conclusion, as the result of all the authorities, that if the mortgage in this case did amount to a contract to execute a further mortgage on subsequently acquired property, it was good as an executory contract only and did not constitute a lien on the articles of the kind mentioned therein when subsequently purchased.” In Gardner v. McEwen, 19 N. Y. 123, the chattel mortgage to the plaintiff, upon property in the store, “ or which might thereafter be purchased and put into store,” was held inoperative to convey the title to the after-acquired property, as against the defendant; who purchased it at a sale under execution upon a judgment against the mortgagor. McCaffrey v. Woodin, 65 N. Y. 459, was an action in trover. Plaintiff was lessee and defendant was agent for the lessor. The former covenanted in the lease that the latter should have “ a lien as security for the payment of the rent ” on all the personal property, etc., which should be put on the premises, “ and such lien to be enforced, on the non-payment of the rent, by the taking and the sale of such property in the same manner as in cases of chattel mortgages on default thereof. By virtue of this provision in the lease, the defendant took the farm produce. The decision upheld the right of the landlord to do so; holding that as the crops came into existence they vested in the landlord. It is to be noted that the court considered the case as one to be governed by equitable principles; observing that “ the matter comes up solely between the parties, there being no intervening rights of creditors.” Referring to Gardner v. McEwen, supra, it was remarked that that “ is a case between the mortgagee and creditors and was affected by our act concerning filing chattel mortgages.” Treating the question as one for the application of equitable principles, it was held that the lessor was entitled to set up her equitable rights, as a defense to the plaintiff’s (the lessee’s) action of trover. In the same case, Gray, C., observed that, if the relation of mortgagor and mortgagee had been created between the parties, “it was inoperative upon any property, which at the time of its execution was not actually, or potentially, either possessed or owned by McCaffrey.” In Cressey v. Sabre, 17 Hun, 120, where the opinion was delivered by Boardman, J., and was concurred in by Justices Learned and Bookes, a chattel mortgage upon potatoes (among other articles of property), which were not yet planted, was held inoperative. The distinction was there mentioned between a case like McCaffrey v. Woodin, where the question of title was betweén the parties to the contract and one where it arose between the mortgagee and a third person. In Coats v. Donnell, 94 N.Y. 168, Andrews, J., observed that “a contract for a lien on property not in esse may be effectual in equity to give a lien as between the parties, when the property comes into existence and where there are no intervening rights of creditors or third persons.” Kribbs v. Alford. 128 N. Y. 519; 31 St. Rep. 564, recognizes the invalidity at law of a chattel mortgage of property thereafter to be acquired; but holds that as between the parties their contract would be construed in equity as creating an equitable lien, which could be enforced.

The idea of a chattel mortgage is that of a conveyance of personal property to secure the debt of the mortgagor; which, being conditional at the time, becomes absolute, if, at a fixed time, the property is not redeemed, and the statute makes it valid, as against creditors of the mortgagor, only when filed as directed. The statute provides for the filing as a substitute for “ an immediate delivery,” or “ an actual and continued change of possession of the things mortgaged.” Such provisions' seem to me to exclude the idea of a chattel mortgage upon non-existing things; or that such an instrument could operate to defeat the lien of an attaching, or an execution creditor upon subsequently acquired property. Regarding the chattel mortgage in question as a mere executory agreement to give a lien, when the property came into existence, some further act was necessary, in order to make it an actual and effectual lien as against creditors. But there was no further act by the parties to the instrument, to create such an actual lien and the levy of the execution upon the crops operated to transfer their possession from the owner to that of the sheriff. As against his possession the equities of the mortgagee are unavailing for any purpose. Between the two creditors it is a question of who had gained the legal right to have the crops in satisfaction of his claim and the equitable right of the mortgagee to them, as against his debtor, was defeated by the seizure at the instance of the judgment creditor. We are satisfied as to the correctness of the conclusion reached by the general term below, that there should have been a direction of a verdict for the plaintiff for the potatoes and beans, obtained from the planting done after the execution and delivery of the mortgage.

The order appealed from should be affirmed and, under the Stipulation, judgment absolute should be ordered for the plaintiff, with costs in all the courts.

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

Ordered accordingly.