author: Clement, C. J.

text:
    Rose Heaney, Administratrix, etc., Resp’t, v. The Long Island R. R. Co., Appl’t.

      (City Court of Brooklyn, General Term,

      Filed May, 23, 1887.)

    1. Negligence—Railroad—Contributory negligence.
    The deceased was killed while attempting to cross the track of the defendant from the southerly side. A train had just passed on the southerly track leaving smoke which it was claimed obscured the view of the deceased of the train approaching on the northerly track, which killed the deceased. The morning was drizzly and the train did not ring its bell or sound its whistle. Held, That the deceased was not guilty of contributory negligence as a matter of law. BonlonY Long Island B. B. Co., 39 Hun, 674, distinguished.
    3. Same—What sufficient evidence to go to jury.
    It could be fairly argued to the jury that the smoke obscured the deceased’s vision, without his knowledge, and if so, and he looked in the direction of the approaching train before attempting to cross, he was not as a matter of law negligent.

      3. Same—Railroad guilty or—Duty as to rlagmart.
    The defendant was guilty of negligence; but they were not bound to keep a flagman at the crossing, or have a gate. Following McGrath v. The N. T. G. It. R. Go., 63 hi. Y„ 533. '

      Horace Graves, for resp’t; Hindsdale & Sprague, for app’lt.
   Clement, C. J.

Patrick Heaney was killed on May 19th, 1886, while attempting to cross the track of the defendant on Atlantic avenue, in the city of Brooklyn.

At Waverly avenue there was an opening in the fence about four feet wide for foot passengers, and the deceased entered such opening on the • southerly side, crossed the southerly track, and stopped on the northerly one where he was struck by the engine, and was dead before the train could be stopped.

There was no gate or flagman at the crossing, and there was testimony to show that neither bell was rung, nor the whistle sounded until the engine struck Heaney, though he was seen from the engine before he stepped on the track. A train had just past on the southerly track, leaving smoke which it is claimed obscured the view of the deceased. The train which ran over Heaney was running at a speed of twenty miles an hour.

The deceased was sixty-seven years of age and a laboring man.

The plaintiff, who was his widow, brought this action under the statute as administratrix, and recovered a verdict at the trial term for $2,600.

A' motion was made for a new trial on the minutes, which motion was denied, and from the order entered thereon and from the judgment this appeal is taken.

We are of opinion that deceased was not guilty of contributory negligence as matter of law. He looked in both directions before attempting to cross the tracks, and it is fair to assume by his action that he did not see the approaching engine.

It is also fair to assume that he did not see the engine_by reason of smoke which obscured his view. The morning was drizzly and the deceased did not know that his view was obstructed.

In this respect, the case differs from the cases referred to by the learned counsel for the appellant.

If the view of the deceased had been obstructed solely by the passing train, then the rule laid down in Donlon v. Long Island Railroad Company (29 Hun, 674), would have been applicable.

In this case the respondent does not claim that the view was obstructed by the passing train, but by the smoke which settled down after the train had passed.

A. person knows that his view is obstructed by a passing train, but he might not know by ordinary observation that smoke lay between him and some other object.

If smoke, a temporary obstruction, did intervene between the deceased and the train, was it his duty to stop until the obstruction passed away?

We should answer the question in the affirmative if he knew that the obstruction existed; but the jury could find from all the circumstances that the deceased did not know that his view was obstructed.

In a damp drizzly morning a prudent, careful man could very easily be misled as to the existence of smoke unless he had watched it thrown off from the locomotive.

It could be fairly argued to the jury that the smoke obscured his vision without his knowledge, and if so, and he looked in the direction of the approaching train before attempting to cross, he was not, as a matter of law, negligent.

We think, also, that it was a question of fact for the jury to determine “whether, under the circumstances of the case, the company exercised reasonable care and prudence in what they did, and whether its neglect caused the injury complained of.” Grippen v. New York Central, 40 N. Y., 34-46.

The case of McGrath v. The New York Central Railroad Company (63 N. Y., 522-527), is directly in point on the question of the negligence of the defendant.

The railroad company were not bound to keep a flagman at the crossing or to have a gate. “ Its sole duty to travellers upon the highway was to run and manage its trains with proper care so as not to injure them in the exercise of their lawful rights.” McGrath Case above cited, p. 529. See also Houghkirk v. President, etc., 92 N. Y., 219-226.

We are also of opinion that the verdict was not contrary to the evidence, and that the damages were not excessive.

Judgment and order denying new trial affirmed, with costs.

Osborne, J., concurs.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Frederick Ropke, Resp’t, v. The Brooklyn Daily Eagle, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1887.)

    1. Libel—Defense—When plea of justification made out.
    The alleged libelous article published by defendant and alleged in the complaint, was in substance, that on the night in question the plaintiff had improper relations with a certain woman in his wife’s bedroom and that this information was derived from his wife’s stating it to an officer that same night at a certain place in a street named. The defense was justification. Held, that if defendant proved that plaintiff did have on that night improper relations with the woman in his own house, and his wife so stated to a person the next morning, but not the same night, then the plea of justification was made out.
    2. Same—What heed not be proved.
    That it was not necessary to prove that plaintiff’s wife made the statement on the night and at the place mentioned in the published article.
    8. Same—When justification proved.
    That justification would he established if by a fair preponderance of evidence the jury was satisfied that the plaintiff had improper relations with the said woman on that night in his wife’s bedroom. %
    4. Same—Giving name of author no excuse.
    The giving the name of the author is no excuse for the publication of a libel. Cases discussed.

      H. E. Teller, for resp’t; Morris & Pearsall, for app’lt.
   Van Wyck, J.

The plaintiff brought this action against the defendant, a daily newspaper published in this city, to recover damages for an alleged libelous article published on October 4, 1885. The jury rendered a verdict in favor of plaintiff for $2,500, on which judgment was entered, and on a motion for new trial an order was granted denying the same. From the judgment and order defendant appealed to this court.

The article complained of is literally set forth in the complaint and is substantially as follows:

Another in her place is what Mrs. Ropke found, after a visit to New York city, on account of which she wanted to commit suicide. Her husband (the plaintiff), is forty years old, medium height, a married man with one living child, and has a grocery store on Third avenue, residing with his family m the rooms over the store, and is generally bedaubed with the marks of his trade. From his appearance' no one would accuse him of being a lady killer. Recently in the afternoon, Mrs. Ropke started to visit some friends in New York, intending to stay all night. As soon as she started, a young woman (woman I referred to in the testimony) was seen to enter the store, who was not observed to leave it again, and at the regular time he closed the store. Mrs. Ropke returned the same night at midnight and proceeded to the private entrance to Ropke’s house, and was soon engulfed in darkness and in a few minutes darted out of the house screaming and ran across Third avenue down toward the water, followed by her husband, who caught and held her. While they were struggling, a police officer came up and asked what was the matter, to which the wife responded- “He thinks he packed me off to New York for the night, but I smelt a mouse and came back-just now, and what do you think I found for a crazy notion, why there was a young woman fast asleep in me place, and he was fast asleep, too, the beast.” Then thy wife ran back to the house and darted to the bed room, but the bird had flown.”

From the admitted facts, it appears that Mrs. Ropke went to New York that afternoon and returned late that night and entered the house, where she found her husband and the woman T, who had been at the house that day and stayed all night. That Mrs. Ropke had some words of complaint at least with her husband, and left the house and went down towards the water of the bay, and was followed by her husband who carried her back. There is testimony tending to show that plaintiff Ropke had improper relations with woman (T), and testimony of Kenny, tending to show while down by the water the husband had hold of his wife urging her to go home, when the wife refused, saying, that she did not want to live with such a man, and saying something about a woman, but what, he did not know. But there is no testimony tending to establish the interview by the water that night between her and a policeman, or any other person, in which she stated she found her husband and the woman in bed together. But there is testimony tending to show that the wife next morning told Mrs. Raufield that when she returned home the night before she listened at the door and heard the woman (T) say she was afraid Mrs. Ropke would come home and catch them. He said, she will not be back till later, at which juncture she opened the door and found the two on the bed together. The improper relations between the plaintiff and woman (T), and the wife’s alleged statement in Kenny’s presence.

The defense of justification was pleaded, viz., the truth of the defamatory article complained of.

This brings us to the consideration of wnat will maxe out the defense of justification on the ground of truth of á defamatory article purporting, in part at least, to be the statements of another person of the plaintiff’s deeds and acts. If defendant has correctly reported the defamatory, language of a third person in reference to plaintiff, then in a certain sense he has spoken or printed the truth; but is this sufficient to establish the plea of justification, or is he called upon to prove the truth of the charge against the plaintiff’s character contained in the statement of such third person, which the defendant has repeated, though he truthfully reports the statement? The history of the law on this point will be found far from uninteresting. It marks the gradual growth of a higher and higher grade for the value of character of the individual, and" developed along in a parallel line with the right of free speech and a free press, which means freedom to utter the truth without fear or danger; but this right imposed the correlative duty of not transcending this healthful limit at the peril of being held Hable for it in damages civilly or with punishment criminally. The supposed privilege, which from the argument of appellant’s counsel he seems to think still exists, of repeating defamatory matter without liabihty, so long as it has been correctly repeated, is supposed to have been founded on a judicial obiter dictum in the Case of Earl of Northampton, for slander as long ago as 1613 (12 English Rep., 133), in which case the court intimated such was the rule as to all persons except magnates like the Earl of Northampton.

In 1805 this rule was approved, with the qualification that to render such repetition a justification for slander, the name of the previous utterer must be mentioned at the time of the repetition, and that the disclosure of the name in the plea for the first time was not sufficient. Woolnoth v. Meadows, 5 East., 463.

In the state of Maine this rule in actions for slander was approved, unless it was proven that the repetition was malicious. Haynes v. Leland, 29 Me., 233. And, also, in-some of the western states, and in other of the states it was held that giving the name of an author at the time of repeating a slander was evidence of want of malice. Though in New York in action for slander, evidence that the defendant had been told by a third person that,.the plaintiff was guilty of the crime imputed to him was inadmissible. Mapes v. Weeks, 4 Wend., 659.

The foregoing authorities were all in actions of slander. The rule that repetition with name of the author mentioned at the same time, was a justification, seems never to have prevailed in the action of fibel, even in those jurisdictions where it did prevail in the action for slander. The (direction we suppose, was based on the theory that it was (natural that all human beings should repeat to their friends [what they had heard about their neighbors, which is a 'common practice even in these days of religious progress 'and enlightened civilization, but that persons of ordinary prudence should and would ascertain the truth of such defamatory statements about their fellowman, before they coldly and thoughtfully put in writing or in print for others to pursue.

The first time this point was ever raised in an action of libel was in 1803, in Pennsylvania, and it was held that the giving of the name of the author was no excuse for publication of libel. Runkle v. Meyer, 3 Yeates, 518.

The same rule was enunciated in New York in 1813. Dole v. Lyon (10 Johns., 447), and, also, in Tennessee (Larkins v. Tarter, 3 Sneed., 681).

The English courts early discountenanced the idea that the fact, that defamatory language was a repetition, should be deemed a justification in an action of libel. Miles v. Spencer (1 Holt N. P., 533), and Lewis v. Walter, 4 B. & Ald., 605, A. D., 1821.

In Hew York the dictum in the Earl of Northampton Case seems to have been altogether repudiated. Mapes v. Weeks, 4 Wend., 659; Inman v. Foster, 8 id., 602; Hotchkiss v. Oliphant, 2 Hill, 510; Dole v. Lyon, 10 John., 447, opinion by Kent, J.; Sandford v. Bennett, 24 N. Y., 20.

The truth, which is admitted as justification, is the truth of the defamatory, in substance and in fact, and in the sense in which it was used and intended to be used.

If A repeats that B said C committed adultery, it is not a justification to prove that B did say so, but to justify such repetition, the defendant must prove that C did commit adultery as charged by B. Watkin v. Hall, Law Rep., 3 Q. B., 396, and authorities above cited.

A close and critical consideration of the alleged libelous article published by defendant and set forth in the complaint herein, contains but one defamatory charge, viz.: “That on the night in question the plaintiff had improper relations with the woman (T) in his wife’s bedroom, and that this information was derived from his wife in part.

In our opinion justification or truth of defamatory publication would be established, if by a fair preponderance of evidence, the jury was satisfied that the plaintiff had improper relations with the woman (T) on that night in his wife’s bedroom, this is the substance of the defamatory article and it was never contemplated that every word of. the article should be justified.

The learned judge, before whom this case was tried, in his charge to the jury, said: “There are two distinct charges; one that the wife charged the husband with the commission of adultery or taking improper liberties with a woman on the bay side of the avenue; secondly, that that (the adultery or improper liberties) took place. ” Again, ‘ the publication of the truth is always an answer in an action for libel, so I say the important question for you to determine is whether both these charges were true. If they were true, your verdict will be for the defendant. If they were not true, unless both are true, you will find a verdict for the plaintiff.” Again: “Did the interview substantially take place on the bay side of the avenue, * * * as narrated in the article % Is it a fact that Mrs. Ropke coming back from Hew York discovered what was charged in the article; did she find Ropke taking improper liberties with a woman ? If you find both of these facts in favor of the defendant, your verdict will be for defendant. If you find either of those charges are not true, you will find for the plaintiff.” Again: “You must be satisfied that Ropke took improper liberties with a woman in the house where he lived. * * “You must be also satisfied that the interview took place on the bay side, substantially as represented in the article. Has he (defendant) satisfied you of the truth of the charge that Mr. Ropke * * found her husband taking improper liberties with a woman in the house, and did this interview take place * * on the bay side of the avenue ?” If you find the defendant * * has not made out the truth, of either charge, you will find a verdict for the plaintiff.”

We have quoted thus fully from the charge to show that the court strongly and plainly impressed upon the jury that there was no justification of the article, even though they were satisfied that Mrs. Ropke on the night in question caught her husband committing adultery or taking improper liberties with the woman (T.) in her own bedroom, unless in addition they were also satisfied that the published interview on the bay side of the avenue, just after-wards, substantially took place with the officer or Kenny, in which she is reported to have said she caught her husband and this woman asleep in her bed. No such interview with the officer took place, and none with Kenny, for all he says that he heard the wife say was, that she refused to go back to the house, saying she did not want to live with such a man, and some word was mentioned about a woman, but what it was he could not say.

So, on the theory upon which this cause was submitted to the jury, the court virtually directed a verdict, for there is not a particle of evidence that the published interview took place that night on the bay side of the avenue. We cannot assent to the proposition of law that when an article is published charging plaintiff with improper liberties and acts with a strange woman on a certain night in his wife’s bedroom, and that his wife on the same night stated the fact to another; that the truth of the plaintiff’s improper acts with the woman, as published, is not justification, if defendant fails to show that plaintiff’s wife so reported it to another on the night and at the place mentioned in the article, even though it be proved that the wife so stated it to another person the next morning. This case, in our opinion, in tins respect, was submitted to the jury on an erroneous theory of the law which militated very heavily against the defendant.

Plaintiffs counsel, doubtless having in mind, that the court had already charged the plaintiff, was entitled to a verdict unless the defendant established two propositions, viz.: First, That plaintiff took impropér liberties with the woman on that night in his own house; .and, second, that his wife, on the same night, at the bay side, made against him to an officer, accusation to the effect that she caught them in bed together. He (plaintiff’s counsel), for the purpose of securing beyond all question a verdict in his favor, requested the court to further instruct the jury. That the charge in the article that plaintiff’s wife accused him, as alleged in the presence of the officer, would not be justified by proof that she made such charge to another person at another time. Referring unquestionably to the wife’s alleged statement to Mrs. Caulfield the next morning in the house, that she caught them in bed together the night before when she returned home, the court in response to this request said: “I shall instruct you, if you find she made the statement at the bay side, at or about that time, that would be a justification. Thus in the light of the evidence giving the jury to understand that if the wife did accuse her husband that night at the bay side, to either the officer or to Kenny, it would be a justification of that part of the defamatory article; but if she did so the next morning to Mrs. Caulfield, it would not be.

Defendant’s counsel requested the court to instruct the jury if the wife made such accusation against her husband to Mrs. Caulfield the next morning at the house, that it would be a justification of that part of the defamatory article. This the court refused and an exception was taken thereto. Mrs. Caulfield testified that next morning Mrs. Bopke in her own room told her that when she returned the night before, she listened at the door and heard this woman say to this plaintiff she was afraid Mrs. Bopke would come home and catch them, and he said she will not be back till later, and then she rushed in and caught them together on the bed. This instruction would have negatived the injurious effect of the judge’s charge that it was necessary to find that she had so stated to some one the night before on the bay side, before the defendant could claim the benefits of a justification. But then only in the event the jury believed the testimony of Mrs. Caulfield, and allowed intelligently the instruction. We think the defendant was entitled to have the harmful influence, of what appears to us an error as to the law of the defense of justification raised by the theory upon which this cause was submitted, so far corrected as this requested instruction would have done in case the jury believed Mrs. Caulfied.

We are convinced that when a newspaper publishes an article asserting on a certain night a married man, in his own house, had improper relations with a woman, and his wife so stated to a person that same night, and the newspaper, when sued for libel, proved to the satisfaction of the jury, by a fair preponderance of evidence, that this man did have, on that night, improper relations with the woman in his own house, and his wife so stated to a person the next morning, but not the same night, that then the plea of justification has been made out; and the defendant is entitled to a verdict, so long as the law makes truth a defense to the publication of all defamatory language. The error underlying the theory upon which this case was tried and submitted to the jury, was largely attributable to the earnestness with which counsel for defendant contended all through the trial for the application thereto of the long repudiated rule founded on the dictum in the Earl of Northampton Case, which naturally tended to mislead the judge in the haste of a trial to assent to his contention, so far as to make it a requisite to his defense to prove the correctness of the report of the alleged interview of plaintiff’s wife with an officer in which she charged her husband with improper relations with a woman, in addition to the truth of the charge- of improper conduct itself. The counsel for the other party not objecting.

We are of the opinion that, for the foregoing reasons, without considering the other points raised by defendant, the judgment and order denying new trial ought to be reversed and new trial ordered with costs to. abide the event,

Osborne, J., concurs.


author: Clement, Ch. J.

text:
    Amelia M. Robinson, App’lt, v. The City of Brooklyn, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1887.)

    1. Tax certificates—Action for redemption money—When barred— Code Crv. Pro., § 382, sued. 1.
    The plaintiff being the owner of certain land which had been sold for taxes, bought the certificates of the tax sale, and having mislaid said certificates, paid the money to redeem under protest. The certificates having been found afterward, she applied to have them redeemed, and learned, that the redemption money had been paid to a third party, who claimed that he owned these certificates, but had lost them. More than six years had elapsed betwen the payment of the money by the plaintiff and the bringing of this action. Held, that it was barred by the statute of limitation under Code Civ. Pro., § 382, subd. 1.
    2. Same—City not a trustee.
    The city did not hold the money as a trustee so as-to prevent the statute of limitations from running.
    3. Same—When statute begins to run.
    A person who holds certificates is barred six years from the .date he has knowledge that the redemption has taken place. Plaintiff had that knowledge when she paid the money.
    4. Practice—Code Crv. Pro., § 405—When applicable.
    There was no finding or proof in the case that any proceeding was ever taken by mandamus, and, therefore, Code. Civ. Pro., § 405, had no application.

      Plaintiff’s premises were sold for taxes on February 19, 1861, to D. H. Feeks, who received from the collector of taxes three certificates, reciting that fact, and providing that in case of redemption, “all sums paid shall be repaid to said purchaser or his assigns, provided this certificate shall be surrendered to the collector of taxes and assessments.” In 1862 or 1863 plaintiff purchased these certificates from Feeks, and received them with an assignment in blank from him, dated 186—.
    In 1874 plaintiff was effecting a loan on these premises, and this sale was returned as an incumbrance.
    The certificates had been mislaid, and plaintiff was compelled to pay $1,158.43 to the registrar of arrears on August 14, 1874, which she did, under protest. On October 13, 1876, A. S. Wheeler presented to the registrar of arrears an assignment from Feeks to himself “of all my right, title and interest in the annexed certificate,” and then giving the numbers of certificates in question. These certificates were never annexed to the assignment, and there is no suggestion that Wheeler ever had them.
    On July 19, 1876, Wheeler gave a bond to the city of Brooklyn in $10,000, reciting:

      First. That Wheeler was the owner of certain tax certificates, which have been or were expected to be paid to the city by the owners.

      Second. That certain of these certificates standing in the name of, and belonging to Wheeler, had been lost, which he claimed to be paid by the city, and agreeing to indemnify the city from any loss by reason of paying him the amount collected on such certificates standing in his name. Annexed to this was a list of thirty certificates.
    Plaintiff found these certificates in 1880. On January 5, 1882, she served a formal notice of assignment on the city, and on January 6, 1882, demanded the money and tendered the certificates, but was refused payment. Plaintiff at once applied for a mandamus to compel the registrar to pay her this money. This was granted by the special term, but reversed by the court of appeals November 24, 1885, on the ground that the registrar held the redemption moneys in trust for the various certificate holders, and having actually paid out this money, the remedy was by suit against the city. Plaintiff began this suit December 18, 1885.

      G. B. & A. H. Ely, for app’lt; George W. Wingate, of .counsel, for def’t; Almet F. Jenlcs, for resp’t.
   Clement, Ch. J.

We are of opinion that the claim of the plaintiff is barred by the Statute of Limitations, and that, therefore, it is unnecessary to determine the other questions in the case. It is an undisputed fact that the plaintiff redeemed the lands from the sales for assessments on the 14th day of August, 1874, and that this action was commenced by service of summons and complaint on December 19, 1885.

The liability of the defendant to return the money when the sales were redeemed arises on the contract contained in the certificates, and afi action upon a contract obligation, express or implied, is barred, after six years, by section 382 of the Code, subdivision 1, except where a demand is necessary, and in such cases, section 410 applies.

The money in this case was received by the city for the plaintiff, if we assume that she was, at the time of the redemption, the owner of the certificates (People ex rel. Robinson v. O’Keefe, 100 N. Y., 572), and an action at law, after a demand and refusal to pay, would lie against the city.

While the city may have held the money constructively as a trustee, it was not such a trust as would prevent the Statute of Limitations running. Kane v. Bloodgood, 7 J. Ch. R., 90, 110; Appeal of Yorks, 3 E. R., 387.

Subdivision 1 of section 410 of the Code provides “that where a right grows out of the receipt of the detention of money or property by an agent, trustee or attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having a right to make the demand has actual knowledge of the facts upon which that right depends.”

In this case, the plaintiff has actual knowledge of the facts upon which her right depended on August 14, 1874, when she redeemed her property.

The liability of the city to plaintiff did not arise because of the payment to Mr. Wheeler, but on the contract contained in the certificate, and if the defendant paid Mr. Wheeler wrongfully, such act gave plaintiff no cause of action.

It is, therefore, immaterial when plaintiff learned of the fact that the city had paid Mr. Wheeler.

The right of the plaintiff grows out of the receipt of money by a collecting agent and the time must be computed from August 14, 1874, when the plaintiff had actual knowledge of the facts, upon which that right depended.

It is claimed by the counsel for the appellant that she (plaintiff) could not demand payment of the money until she had found the lost certificates, which was in the year 1880 and within six years of the date of the commencement of this action.

We think the party cannot have an extension of the time limited from the fact of the loss of the contract on which the claim arises.

In this case, if the plaintiff had brought her action within six years from the date she paid the money to the city, it might be (it could be fairly so claimed by the counsel for the city) that proof could have been obtained showing that Mr. Wheeler was the owner of the certificates and not the plaintiff.

It has been decided in the court of appeals that a party has a cause of action on certificates, even though they cannot be produced. Ayers v. The City of Brooklyn, 87 N. Y., 639.

It would not seem just that a person who holds certificates, should be barred six years from the date of redemption, but six years from the date the person has knowledge that the redemption has taken place. And this is the rule laid down by us in this case. See also Lyle Executrix v. Murray (4 Sand., 590); Bronson v. Munson (29 Hun, 54).

The city was not bound to notify plaintiff of the redemption, as no notice of the assignment had been filed.

There is no finding or proof in the case that any proceeding was ever taken by mandamus, and, therefore, section 405 of the Code has no application.

Judgment affirmed, with costs.

Osborne, J., concurs.


text:
    Margaret Agnew, an Infant, by her Guardian ad litem, Resp’t, v. The Broklyn City R. R. Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1887.)

    Pleading—Sufficiency of complaint—Code Civ. Peo., §§ 481, 546.
    The plaintiff alleged in her complaint that while she was in the act of crossing Sackett street on the crosswalk, the driver of a one-horse streetcar so negligently and carelessly managed his team that the horse knocked her down and injured her. Held, that a motion to make the complaint more definite and certain was properly denied.

      Charles J. Patterson, for resp’t; Morris & Pearsall, for app’lt.
   Van Wyck, J.

This is an appeal from an order denying a motion to have the complaint made more definite and certain.

The plaintiff, a child of five years, alleges that while she was in the act of crossing Sackett street on the crosswalk, the driver of a one-horse street car so negligently and carelessly managed his team that the horse knocked her down and injured her.

This is certainly a plain and concise statement of the •facts constituting her cause of action, as required by Code Civil Pro., § 481. The defendant insists that under section 546 the court should compel her to state what act of commission. or omission of the driver was negligent. The meaning and application of the allegation are definite and certain, it distinctly states negligence in the management and control of the team, viz.: That the driver brought his horse in contact with this plaintiff when by the exercise of ordinary care he could have prevented it. Plaintiff could not furnish in her pleadings more information in relation to the fact thus set forth, unless she pleaded the evidence, by which she expects to prove this fact. This is never desirable; the form of this complaint is to be commended.

If the defendant makes out a case in which he is entitled to the evidence or parts of it, it ought to appeal to the provisions o£ the Code allowing the examination of a party before trial or compelling the party to furnish a bill of particulars.

We see no reason for disturbing the discretion of the court below exercised in denying the motion of defendant. Reardon v. N. Y. C. Co., 50 N. Y. Supr. Ct. Rep., 514.

Order should be affirmed, with ten dollars costs and disbursements.

Clement, P. J., concurs.


author: Osborne, J.

text:
    James McNamee, Resp’t, v. Patrick McNamee, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1887.)

    1. Contracts made on Sunday—Employment op undertaker not void— 1 R. S., 676, § 70.
    John, the brother of the parties, died on Sunday, and on that day the defendant promised and agreed with the plaintiff that if he would employ an undertaker and pay John’s funeral expenses, he, defendant, would repay the same to the plaintiff. Held, that the employment of an undertaker is a work of necessity, and therefore not void if made on Sunday. See. 1 R. S„ 676, § 70.

      2. Same—Statute op prauds—Consideration.
    The statute of frauds did not apply, because at the time the promise was made no debt had been incurred for which defendant promised to become responsible, none was incurred till the plaintiff employed the undertaker. The procurement of the services of the undertaker was ample consideration for the promise to repay.

      H. E. Place, for resp’t; Stewart Ross, for app’lt.
   Osborne, J.

Plaintiff brought this action to recover the amount paid by him for the funeral expenses of one John McNamee, a brother of the parties hereto; the said John McNamee died on Sunday, September 23, 1877, and it was alleged that defendant on that day promised and agreed with plaintiff that if he would employ an undertaker and pay John McNamee’s funeral expenses, he, defendant, would repay same to plaintiff. On the second trial of this action, the jury found a verdict for the plaintiff, and from the judgment entered thereon and the order denying a motion for a new trial defendant appeals.

We shall briefly notice the grounds on which appellant seeks to have the judgment set aside.

It is contended that as the promise of defendant was made on a Sunday, it was void. This position is not tenable. The employment of an undertaker was clearly a work of necessity, and as such is excepted by the statute, (1 R. S., 676, § 70), and even if it did not come under that exception, the contract to repay would be good at common law. Boynton v. Page, 13 Wend., 425.

The learned counsel for the appellant further insists that the defendant’s promise to pay plaintiff was void under the statute of frauds, not being in writing. The answer to this proposition is that at the time of the promise, no debt had been incurred for which defendant promised to become re-responsible; none was incurred till plaintiff. employed the undertaker, and that he only agreed to do so on defendant’s promise to repay him. The procurement of the performance of the funeral rites to defendant’s deceased brother was ample consideration for defendant’s promise to repay plaintiff.

The exceptions to the exclusion of testimony on the trial are not well taken. Their admissibility was clearly within the discretion of the learned trial judge, and we are of the opinion that such discretion was wisely exercised.

Judgment and order denying new trial affirmed, with costs.

Clement, P. J., concurs.


author: Clement, J.

text:
    William H. Bierds, Appl’t, v. Harry C More, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 29, 1887.)

    Trial practice—Evidence—Irrelevant.
    Having tried a certain action on the theory that the question of intent in the execution of a certain deed was material to the issue, the plaintiff cannot complain that testimony which hore on the intent of the party was irrelevant.

      Horace Graves, for app’lt; William J. Gaynor, for resp’t.
   Clement, J.

There seems to be but one point raised on this appeal which calls for our consideration viz: as to the exceptions taken at folios 42, 43 and 44 of the case.

The testimony taken under exception was hearsay and should have been excluded and the judgment should be reversed for the admission of such testimony except for the reason hereinafter stated.

The plaintiff in his complaint alleged that the conveyance was made by the defendant for the fraudulent purpose of avoiding the contract, and on the trial put the deed in evidence, and in fact tried the action on the theory that he was entitled to substantial damages if the defendant had sold the property to avoid the completion of the contract, and the court submitted to the jury the question " whether the defendant conveyed away this property for the purpose of being relieved or avoiding the fulfillment of the contract ” and no exception was taken to the charge.

When the testimony was admitted the learned judge stated that it was allowed not as proof of value or that the representation was false, but to show good faith.

The plaintiff’s counsel should then have stated that there was no such issue in the case. Having tried the action on the theory that the question of intent in the execution of the deed was material to the issue, the plaintiff cannot now complain that testimony which bore on the intent of the party, was irrelevant.

The rule of damages applicable to the present case is laid down by Judge Mason in Pumpelly v. Phelps, 40 N. Y., 59, 66.

Judgment and order denying new trial affirmed, with costs.

Osborne, J., concurs.


author: Brady, J.

text:
    Cambell Printing Press and Manufacturing Company Resp’t, v. Stillman R. Walker, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Accounts—When the items abe distinct—When indivisible.
    Where upon the original sales notes are given to secure payment for the same, and on their maturity, new notes are given, not corresponding to those maturing but for the balance due on account of these various sales, these sales are still distinct, the intention being by giving the renewal notes for the balance simply to extend the time of payment and not merge the various accounts. This is so even though th'e books kept show simply a balance due. {Secor v. Sturgis, 16 N. Y., 548, distinguished.)
    2. Evidence—Res adjudicata.
    A party insisting upon a former recovery as a bar must show that the recovery of the former suit includes the matters alleged to have been determined.
    Appeal by the defendant from a judgment entered upon k verdict in favor of the plaintiff, given by direction of the court.
    The action is one of replevin brought to recover the possession of three printing presses. The defendant is the assignee for the benefit of the creditors of Frank Tousey. The presses in suit come into his possession as such assignee, and had been obtained by the said Tousey together with twelve other similar ones from the plaintiff under six different contracts of sale, as follows: Contract dated April 17, 1879, one press; contract dated February 13, 1879, one press; contract dated June 23, 1880, two presses; contract dated July 30, 1881, two presses; contract dated October 10, 1881, two presses; contract dated November 26, 1881, three presses; contract dated December 15, 1881, four presses.

      These contracts were similar in each instance in the following respects They provided that credit should be given for the entire purchase money; that notes should be given therefor, and that until the deferred payments should be made the title to the presses should remain in the vendors. The last of these presses was delivered on August 31, 1882. Up to this time Mr Tousey had generally met his notes at maturity and when he had failed to do so new notes had been given corresponding in amounts to the unpaid notes, and all of the notes given for the three earlier contracts, or in renewal thereof, had been paid, so that four of the presses were paid for in full unless a further agreement had been made as claimed by defendant. In addition to these fifteen presses, Mr. Tousey had also obtained two other presses through Mr. Owens, whom he had succeeded in business, and who had bought them from the plaintiff under a similar arrangement, but had not completed his payments. Mr, Tousey assumed the payment of the balance remaining unpaid, and soon paid the same. In December, 1883, the plaintiff gave Mr. Tousey a certificate that these two presses and three delivered under the earlier contracts had been fully paid for.
    From the time the last of the presses was delivered, Mr. Tousey was in evident pecuniary difficulties, and his notes maturing very rapidly, were generally not paid, hut were renewed. In making the renewal notes, no attempt whatever was made to distinguish for what particular notes they were given, but the practice was to wait until a number of the past due notes should have accumulated, then a balance was struck, in which also was included incidental bills for merchandise, and the amount divided up into new notes. This process was continued repeatedly until at the time of Mr. Tousey’s assignment. The entire indebtedness amounted tc over $30,000, and was represented by interest bearing notes for about $200 each, maturing weekly, from November 26 1884.
    At the same time this action was brought, the plaintiff brought a similar action to recover the four presses delivered under the last contract. That action, being known as action No. 1, proceeded to judgment. On this appeal the appellant’s contention is that the recovery of that judgment was a bar to this action.
    Other questions are presented by the record, but are not open for consideration at the general term, as they were all passed upon adversely to the appellant upon the appeal in action No. 1.

      G. W. Stephens, for App’lt; Charles Be Hart Brewer, for Resp’t.
   Brady, J.

The contention arising from these facts is that assuming the various transactions to have been originally separate and distinct, the parties agreed to merge them and did so, and they became therefore a single indivisible one as to all of the twelve presses remaining of those delivered. This proposition rests chiefly upon the case of Secor v Sturgis (16 N. Y., 548), the effect of which has been misunderstood and the breadth of which has been misconceived. The learned justice who wrote the opinion therein and that the true distinction between demands or rights of action which are single and entire and those which are several and distinct, is that the former immediately arise out of one and the same contract and the latter of different acts or contracts, and he proceeds to illustrate this view by several suggestions. It must be said, however, that no difference of opinion could well exist on the subject It is one of the questions about which no doubt could be entertained and as to which the rule must stand out in bold relief. This case does not however, present the question there discussed for it is conceded here that the contracts herein were independent, but is insisted that they were amalgamated by the conduct and acts of the parties relative to them after they were made and wholly performed on the part of the plaintiff and partly performed by the defendants assignor. It is supposed that the combination in one account of the details of all transactions—the record of payments made and renewed notes given without a separate account as to each press or transaction is the culminating incident which created a new contract and deprives the plaintiff of the benefit of its lien under the original agreement of sale. The precise question was considered in Zimmerman v. Erhard (83 N. Y., 74). One of the defenses therein was that another action was pending for the same cause and it was predicate of the proposition that the different sales alleged constituted one cause of action only and an account rendered containing the items as to all was sought to be used to the plaintiff’s disadvantage, but the court held the transactions to be distinct, and that the rendition of such an account did not change the contract or evince that the transactions were not separate and distinct. The evidence herein, it may be said, shows a determination on the part of the plaintiff to maintain its lien in all its integrity however lenient it might be as to the payments to be made. Interviews between the. defendants assignor on the subject which are not gainsayed establish this beyond doubt. Indeed, it may be also said that the only evidence which the defendant can evoke on the subject is the manner in which the accounts were kept and this as we have seen cannot be employed against the plaintiff’s lien.

It appears that the sum due on the presses covered by this action was stated by the plaintiff’s general manager, and with sufficient certainty to call upon the defendant to assail the statement, if he could- do so. The object was clear enough, because if the amount due on the presses herein claimed was tendered with the costs of the action they could be retained. The transactions are separate and distinct, and each must rest upon its own merits. The defendants having failed to establish that the contracts become one and indivisible, the defense failed also. It could not be said that the former judgment obtained in an action on one of the several contracts mentioned was for the same cause of action. It was not in fact, and could not be unless the doctrine of merger discussed has sprung into existence and must be applied here. A party insisting upon a former recovery as a bar must show that the record of a former suit includes the matters alleged to have determined. Secor v. Sturgis, supra, 554; Campbell v Butts, 3 N Y, 173; Griffin v. Long Island R. R. Co., 102 N. Y , 449, 452, 2 N. Y. State Rep., 454.

It seems to be contended also on behalf of the defendant that unless the presses were to be considered as bought under one contract and the title was therefore to remain in the plaintiff until all were paid for, then the presses were paid for, for which this action is brought.

This result is not established by the evidence. There is a fragment for example of the note for one thousand dollars given upon the settlement of the contract in suit still existing, the renewal notes taken, each embracing a portion and each reducing the amount. This is shown by Mr. Brower, the managing agent of the plaintiff, who said as matter of fact that he was able to state that there was six hundred and sixty odd dollars due on that note as matter of computation. He said in answer to his question on the subject: “ In other words you applied payments that were made upon the notes which had been given on account of the different presses.” “We took that $1,000 note; it was charged back to him on a certain date, and other notes charged back on that date. These amounts were renewed in certain renewal notes. A certain part of that thousand dollar note was represented in each one of these notes, and if you took each one of these notes, and if you took each one of these renewals and followed them up, you can compute exactly how much has been paid on that note, and I have a memorandum and will give you the dollars and cents.”

He had previously stated that he had arrived at the amount stated by tracing out that original note from its maturity until it was split up into two hundred dollar notes. The learned counsel for the appellants had ingeniously sought to make the witness admit in some mode directly or indirectly the merger of the lien, and in some respects made it appear that it was done, but the witness removed the obscurity by showing that it was the indebtedness on the books only that was amalgamated—one debt or transaction existing only so far as the books were concerned—that is as matter of accounting.

The learned counsel for the plaintiff has shown by a detailed presentation of the account, the accuracy of the statement that a part of the one thousand dollar note was not paid. It should be. said further that no direction appears to have been given as to the application of the payments made, • and the plaintiff was evidently wholly uncontrolled in that respect. It is also to be said that the burden was put upon the defendant to prove title perfected to the presses in question by the payment of the outstanding liability, and this has only been attempted by resort to asserted infirmities in the plaintiff’s accounts. They are involved and complicated, it is true, but as explained by the plaintiff’s officers and employees, who alone were called, they do not assist the defendant in the effort made in that direction. The defendant called no others. .

The defendant also contended that the release of five of the presses mentioned in the statement of facts bears upon the agreement that the twelve presses not released should be held as security for the unpaid purchase price of the seventeen; yet the detailed examination of the account already mentioned shows that they were paid for when released. But the best response to this element of the defense is the finding made by the referee in the former action as-follows:

Thirteenth. That the acceptance of new notes for each ascertained balance of account was for the accommodation of said Tousey by way of extension of the time of payment of said purchase money. The parties did not intend thereby to modify in any respect the terms of the contract in reference to the presses in suit beyond extending said time.”

If the defendant resorts to this judgment for any purpose he must take it as he finds it, not in fragments, but as a whole. It was not difficult m transactions like those between the defendant’s assignor and the plaintiff, distinguished as they were by numerous details involved and complicated to create a seemingly worthy contest on the merits, and perhaps to leave some obscurity as the result, whatever disposition should be made of them ultimately, but there is nothing shown which throws any suspicion of fair dealing upon the plaintiff, while it distinctly appears that the difficulties encountered spring from the nonpayment of the purchase price according to the contract and the numerous extensions of time given for that purpose and the details they embraced.

The judgment should be affirmed, with costs.

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


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

text:
    Edward Hansen, Resp’t, v. The Trustees of the New York and Brooklyn Bridge, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.

    1. Negligence—Liability bob negligence ob foreman—Incompetency —How proved.
    In an action for damages resulting from injuries received on account of the alleged incompetency of a foreman of a gang of workmen, of which plaintiff was one, Held, that the mere fact that an accident had happened or that a man had heen careless upon one accasion. does not of itself show incompetency. That other or additional proof is necessary.
    3 Brooklyn bridge—Not a corporation—Judgment not enforceable AGAINST.
    The trustees of the Brooklyn bridge do not constitute a corporation and an admission in an answer would not render a judgment enforceable.
    Appeal from judgment in favor of plaintiff.

      John L. Hill, for resp’t; W. N. Dykman, for appl’ts.
   Van Brunt, P. J.

The plaintiff in this action was injured upon the Brooklyn bridge, and it is claimed that such injury arose from the incompetency of one Hoffman who was a foreman of the gang of men with whom the plaintiff was working.

The cases of Crispin v. Babbitt (81 N. Y., 516), and Neubauer v. New York, Lake Erie and Western R. R. Co., (101 N. Y., 607), seem to hold that Hoffman, although foreman of the gang in which the plaintiff was working, is to be regarded as a fellow workman, and that the plaintiff’s injuries were due to the carelessness of a fellow servant, and that the defendants are not liable in this action unless Hoffman was incompetent for the position he held, and the defendants had not used due care in selecting him for this employment.

The mere fact that an accident has happened or that a man has been careless upon one occasion does not of itself show incompetency; some other additional proof is necessary.

In the case at bar the only evidence which is claimed as showing incompetency is that of a witnes who was a fellow servant of Hoffman, and the plaintiff upon the work, who says: “ I knew Hoffman from the time he came upon the bridge; knew what work he had performed while he was there, and his capacity for doing work.”

He was then asked :

Q. What in your opinion was his efficiency and carefulness as a foreman ? A. I don’t believe he was competent to be a foreman, because there was a little man in his gang that used to take charge of his work.”

The witness did not base his judgment upon what he had seen Hoffman do, or the character of Hoffman’s work, but simply upon what somebody else did.

The witness had been associated with Hoffman for nine months at least, and pretended to know his capacity for doing work, and yet founded his opinion upon a fact which in no way bore upon the competency of Hoffman.

Hoffman had been a sailor all his life; had been second mate and had been employed upon the bridge for some time, and he cannot be assumed to be incompetent without some evidence upon this point.

The mere fact that he had only been a short time employed as foreman, raised no presumption of incompetency. He had to begin at some time to be foreman, and m view of his early life he might well have been entirely competent to act as rigger without any experience upon the bridge at all.

There does not seem therefore to have been any evidence to go to the jury that Hoffman was incompetent, or that the defendants were negligent in employing him, and. the motion for a dismissal of the complaint should have been granted.

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

Macomber, J., concurs.

Bartlett, J.

A determination of the questions raised on this appeal can have no practical result. The appellants were sued as a corporate body, and by the answer admitted their incorporation. Since this answer was served, however, the court of .appeals has decided that these trustees do not constitute a corporation. Walsh v. Trustees of N. Y. and Brooklyn Bridge, 96 N. Y., 427, 438. The admission in the plea will not serve to render a judgment enforcible herein against the appellants; and hence it is wholly unimportant whether the plaintiff shall retain his judgment in form, or the defendants shall have it set aside. It is worthless to him and harmless to them. The case belongs to that class which appellate tribunals may decline to pass upon, for the reason that no effect can be given to the decision. People ex rel. Geer v Com. Council of Troy, 82 N. Y , 575.

I am therefore in favor of dismissing the appeal without costs.


author: Van Brunt, P. J.

text:
    William B. Perry et al, App’lts, v. John L. Smith, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Practice—Undertaking—Party signing is not surety.
    Where an undertaking on which an order of arrest was granted was signed by one of the plaintiffs in the action and one surety. Held, that it was not executed by two sureties; that the plaintiff could not be surety.
    2. Same—Affidavit—Should contain evidence.
    An affidavit should contain the evidence from which the court can draw conclusions, and not the conclusions of the affiant drawn from evidence which is not furnished to the court.
    Appeal from an order vacating an order of arrest.

      Joseph A. Shoudy, for app’lts; King & Clement, for resp’t.
   Van Brunt, P. J.

In the disposition of this appeal it is, not necessary to determine the question whether the court has power to amend an undertaking on arrest when executed by only one surety.

The claim that the undertaking was executed by two, sureties because signed by one of the plaintiffs and one surety, cannot prevail. By the execution of the undertaking, the plaintiff incurred no additional responsibility. He, without having signed any undertaking at all, would be liable for all damages sustained by the defendant if the order was vacated or the defendant succeeded in the action, and it is evident therefore that no additional security is offered by one of the plaintiffs becoming a party to the undertaking.

We do not think that the order should have been issued upon the affidavits presented by this record.

The allegation in the affidavit is that the money not used should be repaid upon demand, and there is no proof of any demand having been made.

It is true that the plaintiff avers that in an interview held with the defendant on December 8, 1885, he promised to pay the said, money immediately, but has failed to do so, but there is no assertion of a demand.

The plaintiff deposes positively as of his own knowledge as to the use made of the money by the defendant when he had no personal knowledge upon the subject, it subsequently appearing that whatever knowledge he had arose from conversations alleged to have contained admissions made by the defendant. What these conversations were from which the plaintiff deduces these admissions we are not informed, and there is no evidence contained in the affidavits, of anything justifying the plaintiff in claiming that the defendant had made any admission to him whatever.

An affidavit should contain the evidence from which the court can draw conclusions, and not the conclusion of the affiant drawn from evidence which is not furnished to the court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.


text:
    Frederick Vagen, App’lt, v. Magdalena Birngruber, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 18, 1887.)

    1. Co-partnership—When proved.
    Where a referee found as matters of fact that this plaintiff and defendant agreed to become partners, each agreeing to contribute capital which they did, and thereupon they began to do business. Held, that there was no element wanting to establish a complete relation of partnership.
    3. Same—What constitutes one a partner.
    Where under the agreement of partnership the plaintiff had no immediate right to receive any part of the profits because of the inequality of contribution in capital, but he was chargeable with the losses. Held, tie had all the rights and obligations of a partner.
    3. Practice—Final judgment in equity suits—How entered—Code CivPro., §1328.
    In an action for equitable relief, the referee who tried the cause not having reported the form of a decree to be entered. Held, that the final judgment should be a decree of the court settled by the court and entered upon its direction. That Code Civil Pro., § 1338, does not conflict with this practice.

      Appeal from judgment entered on report of referee.

      Solon P. Bothschild, for app’lt- Kaufman & Sanders, for resp’t.
   Van Brunt, P. J.

Although the practice pursued in the entry of the judgment in the case at bar seems to have been irregular, as no objection has been taken upon that ground upon this appeal, such irregularity will not be considered except so far as to state that the action being for equitable relief, the final judgment should have been a decree of the court, settled by the court, and entered upon its direction, the referee who tried the cause not having reported the form of a decree to be entered. Section 1228 of the Code in no way conflicts with this practice.

The action was commenced to procure a dissolution of an alleged copartnership and an accounting as to the copartnership business, the referee having concluded as matter of law that no partnership had been proved, dismissed the plaintiff’s complaint.

The conclusion of law of the referee that no partnership existed between the parties to this action, is clearly at variance with and contrary to his findings of fact.

It is found as matter of fact, “ that prior to January, 1883, the plaintiff and defendant made an agreement that they should enter into business together, each one contributing capital, and that when defendant should have been repaid out of the profits of the business, the sum which he should contribute in excess of the amount of capital contributed by the plaintiff, the net profits thereafter remaining should be equally divided between plaintiff and defendant, and that each party should bear half the losses and expenses, and thereupon they began to do business.”

It is then found “ that the plaintiff contributed as capital the sum of $148, and the defendant contributed $1,000.

Thus it appears that the plaintiff and defendant agree.d to become partners, each agreed to contribute capital, which they did, and thereupon they began to do business.

There is no element wanting to establish a complete relation of partnership.

It might be true that under the agreement the plaintiff might not have been immediately entitled to receive any part of the profits because of the inequality of contribution in capital, but he was chargeable with the losses and had all the rights and obligations of a partner. The referee finds that after this agreement between the parties to become partners, they began to do business, and that each contributed capital to this business.

If thejr began to do business, it is evident that they did such business as such partners and not otherwise.

The claim that the plaintiff was not to become a partner until the defendant's excess capital was repaid out of the profits, can find no support from this finding, and is directly opposed both to its terms and spirit.

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

Brady and Daniels, JJ., concur.