text:
    George Petrie, by Guardian, etc., Resp’t, v. Frederick Williams, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed, July 5, 1895.)

    1. Infant — Conversion—Payments.
    A party, who was concerned in the conversion hy an attorney of his infant client’s property is entitled to credit only for such part of payments made by the attorney to the infant as were reasonably necessary for her under all the circumstances.
    2. Appeal — Harmless error.
    It is not reversible error for the court to discharge, of his own motion, a juror, where there is nothing to indicate that the objecting party was prejudiced by such act.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial on the minutes.
    The action was commenced in January, 1891, against the appellant and one Thomas H. Breen. A trial was had at the circuit, and a verdict recovered against both defendants, and an appeal taken to this court after the first trial was affirmed as to Breen, and reversed as to Williams. The opinion delivered in this court appears in 68 Hun, at page 589 ; 52 St. Rep. 587. The defendant Breen has died since the appeal was heard, and before the trial now brought in review. Plaintiff’s complaint alleges that on December 21st she was the owner of five promissory notes, in amount and value of $3,000, which were executed by Jeremiah Petrie, and delivered to her attorney, Breen, payable to his order, and “thereafter the said defendants, Thomas H. Breen and Frederick Williams, took possession of the said notes and converted them to their own use, and refused to return them to the plaintiff, although duly requested so to do, and sold and disposed of said notes, and uáed the avails of such sale or sales for their own use and benefit.” In the answer of the defendant it is alleged that the notes were given in settlement of an action brought by this plaintiff against Williams for breach of promise of marriage. The answer of the appellant alleges that Breen was authorized by the plaintiff to make sales of the notes, and, out of the proceeds of the notes so obtained and purchased by this defendant, he'(said Breen), before the commencement of this action, paid and turned over'to the plaintiff in money and property the full sum thereof which she was entitled to receive under and pursuant to their said agreement and contract.”

      Watson M. Rogers, for app’lt; Elon R. Brown, for resp’t.
   Hardin, P. J.

— When this case was before us on the former appeal (68 Hun, 589; 52 St. Rep. 587), in the course of the opinion it was said : “Under the circumstances of this case, we think the plaintiff was entitled to maintain this action.” And in the course of the opinion it was also said: “We think it must be regarded as settled in this state that an executory contract relating to the personal property of an infant may be avoided by her during her infancy. Bool v. Mix, 17 Wend. 119 ; Stafford v. Roof, 9 Cow. 626 Chapin v. Schafer, 49 N. Y. 407 ; Sparman v. Keim, 88 id. 245; Beardsley v. Hotchkiss, 96 id. 201.” In the course of the opinion it was further said, viz. : “The appellants also contended that the plaintiff could not recover in this action without tendering to the defendant Breen all she recovered. To this there are two answers: First, that the defendants were permitted on the trial to prove all that had been advanced to plaintiff, and the jury deducted that amount from the value of the notes other than those delivered to Williams for real estate; and, second, all the money that had been paid to the plaintiff by Breen had been expended •or squandered by her during her infancy.” So far as the questions referred to in the opinion arise upon the trial now before us, we •should follow the doctrine laid down in the opinion. After the trial judge had delivered his charge, the defendant’s counsel asked the court to charge “that the defendant is entitled to credit in this action for whatever amounts Breen has paid to the plaintiff.” The request was refused, and an exception taken. Thereafter the court observed: “Of course, I do not want you to misunderstand it. I stated in my charge that Breen was entitled to credit, or that the plaintiff should be charged in this case with whatever sum was paid by Breen that was reasonably necessary for her under all the circumstances, considering her then condition and circumstances, and everything of that kind; * * * whatever he paid that was reasonably necessary for her to have for her support and maintenance.” Thereupon the counsel for the defendant stated, viz. : “We claim here that he is entitled to credit for whatever Breen paid, because this is an action of trover; and, if she received these notes, — if she received the proceeds, — of course she could not recover in trover for it.” Thereupon the court remarked : “I will give you an exception. I will not change my charge,” — the defendant took an exception. The defendant also requested the court to charge “that no recovery in this action of trover can be had against this defendant for my portion of the notes which has been paid to the plaintiff.” The request was refused in the following language: “I refuse to charge except as I have upon that.” By the evidence it appears that the defendant had been concerned in the conversion of $2,500 of the notes, that they had been discounted, and that he had received the proceeds thereof, inasmuch as the notes had been paid by the maker; and one important question in respect to the defendant was whether he was a bona fide holder for value. The question was fully submitted to the jury, and it must be assumed that the jury have found that he was not a bona fide holder of the notes, and that, according to the doctrine laid down in the opinion in this case on the former appeal, he was liable td respond to the plaintiff for the money realized by him on the sale of the notes, less the credits which had been allowed, according to the doctrine laid down in Comstock v. Hier, 73 N. Y. 269, and Farnham v. Benedict, 107 N. Y. 159; 11 St. Rep. 450. The court in its charge allowed the defendant to receive the benefit of such sum as the jury should find was reasonable compensation for the services rendered by Breen in and about bringing the action for breach of promise which resulted in producing the notes in question. There was some evidence given upon the trial tending to show that Breen had, prior to the commencement of this action, advanced to the plaintiff on sundry occasions sums which, in the aggregate, amounted to $1,286. By refusals to charge as requested, the jury was not allowed to diminish the claim of the plaintiff by allowing all of such sums. In the course of the charge it was stated that the jury were only allowed to regard the claim of the plaintiff as valid to the extent of $2,500, diminished by such sum as should be allowed for the payments made that were found by the jury ,to be “reasonably necessary for her under all the circumstances, considering her then condition and circumstances, and everything of that kind or, to put it in the further language used by the trial judge, “whatever he paid that was reasonably necessary for her to have .for her support and maintenance.” A majority of the court are of the opinion that the restrictions put by the trial judge as to the right of the jury to find upon the advances made to the plaintiff were not too stringent, and that, if “there was a conversion of the notes and the defendant did not act in good faith, he was not entitled, by way of equitable offset, to more than Breen had a right to hand over to plaintiff, or more than Breen would have a right to be allowed were he the general guardian of plaintiff.”

2. Whdn May Brown was testifying in behalf of defendant, she stated that Exhibit 7 and Exhibit B were all made at one time, and were from dictation. Thereupon a general question was propounded to her in the following language: “ I ask you whether you sometimes took dictation from Mr. Breen with reference to her matters in her presence.” This was objected to, and the court observed that it was not competent, and excluded the evidence, and the defendant took an exception. Subsequently, in response as to other questions and objections, the court observed: “ If she can say that papers relating to the breach of promise were written by her in the presence of Breen and the plaintiff, she may state it.” The witness tfiereunon answered: “Well, I don’t think I can say that positively.” We think the exception first referred to, when considered in connection with the ruling made by the trial judge and the answers made by the witness, present no error.

3. It is stated in the case that “Martin Y. Knight, a juror drawn on the panel, was excused by the court upon the court’s own motion upon the ground that it appears by his examination that he was present during the former trial of this case, heard all the evidence and summing up of counsel, and the charge of the court.” To the ruling excusing the juror, defendant excepted. ,It does not appear in the case that the defendant had used any of his challenges when this ruling was made ; nor is there anything in the case to indicate that the defendant suffered by the action of the court in discharging the juror. In Greenfield v. People, 74 N. Y. 277, it was held, viz.: “One who has formed an opinion or impression from the reading or report, partial or complete, of the testimony against a prisoner on a former.trial, however strong his belief and purpose that he will decide the case on the evidence to be adduced, and will give an impartial verdict thereon, unbiased by that impression cannot be readily received as a juror indifferent towards the prisoner and wholly uncommitted.” In-the case before us, “ nothing appears to show that any injustice was suffered by the defendant.” See Steadman v. Batchelor, 49 Hun, 390 ; 19 St. Rep. 518, and cases cited in the opinion. Code Civ. Proc. § 723. _ .

_ 4. It seems the testimony received against the exception of the defendant taken at folio 17Í and at folio 174 was stricken out on motion of the defendant. When the motion was made the plaintiff’s counsel remarked, “I assent that it be stricken out.” Some other evidence was taken, after an objection made by the defendant, under a remark made by the court, “ I will receive it for the present.” Subsequently a colloquium occurred between the court and counsel, and the court observed, “ If you object, I will strike all this out that has been readand thereupon the counsel for the defendant remarked, “It is fair to us that part should be in, because there was a great deal of talk on the other trial and thereupon the court observed, “ I "will let you put it in, and reserve the question and dispose of it- afterwards." After the remaik made by the court, the counsel for the defendant said, “Then we will let it go in.” We think no error is presented by the exceptions taken at the folios mentioned.

We have looked at numerous Other exceptions incidentally referred to in the argument of the appellant’s counsel, and are not persuaded that any of them presentan error prejudicial to the defendant requiring us to disturb the verdict. The foregoing views, if assented to, lead to the conclusion that the verdict should stand.

Judgment and order "affirmed, with costs.

All "concur.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    The People ex rel. Thomas Coggey, Pl’ff, v. William Brookfield, as Commissioner, etc., Def’t.

      (New York Superior Court, Special Term,

      Filed July 3, 1895.)

    Civil service law — Chap. 577 of 1893.
    A day laborer in the department of public work does not hold his position by appointment, receiving a salary from the city, within the meaning of chap. 577 of 1893.
    Application for a writ of mandamus.

      N A. Alexander, for the motion; F. M. Scott, opposed.
   McAdam, J.

— The relator was a day laborer in the department of public works, receiving two dollars per day, and on April 26, 1893, was discharged. He claims that his removal was made without cause and without a hearing, and that, being a veteran fireman, it was in violation of chapter 577 of the Laws of 1892.

The act provides that:

“ No person holding a position by appointment in any city or county of this state, or who may hereafter be appointed, receiving a salary from such city or county (unless he has been appointed for a definite time), who * * * shall have served the time required by law in the volunteer fire department of any city, town or village in this state, or who shall have been a member thereof at the time of the disbandment of said volunteer department, shall be removed from such position except for cause shown after hearing had.”

In Meyers v. City of New York, 69 Hun, 291 ; 53 St. Rep. 233, Judge Follett, construing the language found in this statute, in reference to an inspector of regulating and grading streets, who received three dollars per day, said, at page 295, 69 Hun:

“ The intestate held no ‘ position by appointment,’ and he was compensated for his labor by daily wages, but not by ‘receiving a salary’ and he is not within the statute. Salary differs from wages, and denotes a higher degree of employment. The term ‘ wages ’ indicates inconsiderable pay, without excluding salary, which is suggestive of a larger compensation for more important services. The contention that a person employed by the city by the day, who has served in the army, cannot be discharged or his services dispensed with ‘except for cause shown after hearing had,’ derives no support from the language or intent of the statute quoted.”

Judge Andrews, in Sullivan v. Gilroy, Law J. July 3, 1889, affirmed 55 Hun, 285, says :

“ There can be no question that the view taken by the corporation counsel as to the construction of this statute is entirely correct, and that a day laborer employed as the relator was in repaving the streets is not a person holding a position by appointment in this city, receiving a salary from the city.”

See, also, People ex rel. Van Valkenburgh v. Myers, 23 St. Rep. 18 ; Cane v. Mayor, etc., 34 Supp. 675.

As the act does not apply to day laborers, the application for a mandamus to reinstate the relator must be denied.


text:
    The People ex rel. Isdior Grunwald, Pl’ff, v. Independent Order Ahavas Israel, Def’t.

      (New York Superior Court, Special Term,

      Filed June, 1895.)

      1. Benevolent society — Expulsion.
    ■ A member of a benevolent society cannot be expelled, without the service of the notice prescribed by its constitution.

      2. Same — Mandamus.
    Where such proceeding for expulsion is invalid, the relator is entitled to a mandamus to compel his reinstatement as a member.
    Application for a writ of mandamus to compel" relator’s reinstatement as a member of a benevolent society.

      C. H. Smith, for relator; A. B. Jaworower, opposed.
   McAdam, J.

— The relator, a member of Joseph Grosner Lodge No. 4, was, on May 9, 1895, expelled for nonpayment of dues. It appears that the defendant’s grand lodge is a corporation, and that its constitution provides that before a member shall be expelled he must be given at least eight days’ notice previous to the meeting, The defendant has no by-laws, and must therefore be governed by those of the grand lodge. On May 6,1895, the deféndant mailed a letter to the relator, stating that unless he paid his dues at a meeting to be held on May 9th he would be suspended, and this notice is the only authority for its action. Expulsion, if a property right is involved, must always be on notice, and, if no other method of notice is prescri bed by the by-laws, it must be served personally.. Bac. Ben. Soc. § 101. By the constitution of the grand lodge the relator was entitled to the sum of $500 on the death of his wife. She died on May 12, 1895, so that there is dependent upon the legality of relator’s expulsion the right to the aforesaid $500. If the defendant had adopted by-laws of its own, and the relator had subscribed to them, so as to become bound thereby, a different question might have arisen. But, on the case as presented, it is clear that he did not get the notice required by the constitution of the order, and was therefore illegally expelled. He did not attend the meeting held May 9th, and therefore waived none of his rights. The relator exhausted all the remedies pro: vided by the society of which he is a member. He appealed to the grand lodge and that body refused to recognize him in any manner, so that the only course open to him is by mandapius. . It is well settled that, where 'such proceedings- are not in accordance with the by-laws of the society, the relator is entitled to this remedy. 14 Am. & Eng. Enc. Law, pp. 153, 154.

The application will therefore be granted.


text:
    Solomon Feiner, App’lt, v. Max Kobbe, Resp’t.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    Broker — Commissions.
    A broker is not entitled to commissions, where the failure to effect the exchange of land is not chargeable to any misconduct of the employer, but is owing to the inexcusable absence of the proposed purchaser, whom the broker impliedly undertook to produce at the time and place appointed for the execution of a formal contract.
    Appeal from a judgment, entered on the direction of the trial judge, dismissing the complaint.

      A. J. Westermayr, for app’lt; A. & L. Levy, for resp’t.
   McAdam, J.

— The action is for brokerage claimed for effecting an exchange of real estate in this city. The defendant owned the tenement house No. 77 Broome street, and one Joseph Newborg owned the flat known as “No. 124 East Eighty-fifth street.” The defendant consented to take the fiat at $30,000 in exchange for his tenement at $28,000, the difference to be paid in cash. Such assent was expressed in a memorandum signed by the defendant, in which it was stated that a formal contract would be made at 10 A. M. on the following day, at the office of his attorneys, A. & L. Levy, No. 25 Chambers street. The defendant attended at the agreed time and place, ready to execute the formal agreement contemplated, but Newborg did not appear. The plaintiff claimed that he had power to represent Newborg, but the defendant declined to consummate the exchange in his absence, and as a consequence, the exchange fell through. We fail to discover how the plaintiff, on the facts stated, became entitled to brokerage. The memorandum signed by the defendant expressly provided that the principals to the transaction should meet at the office of the Messrs. Levy, for the purpose of reducing their proposals to the form of a written obligation, to be signed by each. No time for closing the title had been agreed upon, the character of the deeds or covenants required had not been discussed, and nothing mentioned as to how the interest on the different mortgages covering the two properties was to be adjusted, or the rents apportioned and paid by the one owner to the other. The plaintiff had no written authority from Newborg to execute a formal contract for him ; nor does it appear that he was prepared to adjust any of the preliminaries necessary to a final understanding between the parties, or even possessed the knowledge essential thereto. According to his evidence, he was the broker of both parties, and infer-en tially had no more power to represent one than the other, and possessed no authoriv to make a written contract for either. The general rule undoubtedly is that, when a broker employed to negotiate a sale of real estate brings to his employer a responsible purchaser, willing to buy upon the terms prescribed, he has earned his commissions (Gilder v. Davis, 137 N. Y. 506; 51 St. Rep. 179, and kindred cases); and the employer cannot, by refusing to enter into a contract with a purchaser procured by a broker, escape liability for brokerage; for as the court of appeals in Barnard v. Monnot, 33 How. Prac. 440, *42 N. Y. 203, said:

“The duty of the broker consisted in bringing the minds of the vendor and vendee to an agreement. He could do no more. He had no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel performance of either of these duties.”

This case differs essentially from. Barnard v, Monnot, supra, in that here the defendant did not refuse to enter into a contract with a person procured by the plaintiff; on the contrary, he was ready and willing to make such contract, and attended at the office of his attorneys at the time and place stated in the memorandum, for the express purpose of joining in such contract; and the failure was owing exclusively to the neglect of Newborg to execute the terms of the contract on his part. The distinction is clearly stated in Platt v. Kohler, 65 Hun, at page 560, as follows:

“Where a principal refuses to carry out a transaction made by his broker on terms duly authorized, the broker may recover, for he is not to be deprived of his compensation because the principal retreats, or changes his mind. The broker has then done all he can. But where the principal stands ready to perform, to enter into a contract on conditions he has authorized, and the party produced by the broker refuses to conform thereto by entering into a binding obligation, the broker has failed to effect the purpose of his employment; he has not found a person ready and willing to take on the agreed terms, and his principal is not liable for commissions.”

The defendant insisted upon having a formal contract in writing giving in detail all the terms and conditions of the exchange, and had a right to impose this condition before assenting too trade, or making himself liable for brokerage. The failure to effect the exchange is not chargeable to any misconduct of the defendant, but is owing to inexcusable absence of Newborg, the proposed purchaser, whom the plaintiff impliedly undertook to produce at the time and place appointed for the execution of the formal contract.

For these reasons, and those assigned by the trial judge, the complaint was properly dismissed; and the judgment entered on such dismissal must be affirmed, with costs.

All concur.


text:
    John E. Smithers, Resp’t, v. David Steiner, App’lt.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    Vendor and purchaser — Title.
    The encroachment of the walls of a house about two and a half inches on a street and six-eighths of an inch on an adjoining lot, renders the title unmarketable.
    Appeal from a judgment, dismissing a counterclaim.

      Hahn, Myers & Bronner, for app’lt; Kurzman & Frankenheimer, for resp’t.
   McAdam, J.

— The evidence sustains the finding of the trial judge that the front wall of the buildings on the property defendant contracted to convey to the plaintiff encroaches upon the public street known as “Eighth avenue” at least from two and one-half to three and one-half inches, and that the northerly wall en-, croaches upon the adjoining land at least six-eighths of an inch ; and the question is whether such encroachments impair the title so as to make it unmarketable. The trial judge held that they do, and accordingly gave the plaintiff j udgment for a return of the deposit paid by him on the contract, with the necqssary expenses attending the examination of the title. The encroachment upon the street was a substantial one, and we fail to discover anything in the record which establishes an estoppel against the municipality, or prevents it from taking legal measures to remove the obstruction. The projection was not visible to the eye of the purchaser, and is probably unknown to the municipal authorities. Where the encroachment is of a substantial character, we cannot .see that it makes any difference whether it is upon the street or upon adjoining property. The vendee is entitled to receive title to the land with four walls to the house, and these should stand on the land conveyed, that the purchaser may acquire an unimpeachable title to all. In the following cases encroachments of buildings upon the adjoining land have been held fatal defects, and the purchasers relieved from their purchases: Stokes v. Johnson, 57 N. Y. 673, and McPherson v. Schade, 8 Misc. Rep. 424 ; 59 St. Rep. 36, — encroachment, one inch and a half. Smyth v. McCool, 22 Hun, 595, — encroachment, five inches. Arnstein v. Burroughs, 27 N. Y. Supp. 958, — encroachment, two inches. Bowie v. Brahe, 4 Duer, 676, 3 Duer, 35, — encroachment, one inch and seven-eighths. In King v. Knapp, 50 N. Y. 462, the purchaser was relieved from the purchase because the building of the adjoining owner had for twenty-five years encroached upon the land defendant had contracted to sell. The projection in each of those cases was held to render the vendor’s title unmarketable, a term carefully considered in Vought v. Williams, 120 N. Y. 253, 257 ; 30 St. Rep. 899 ; Fleming v. Burnham, 100 N. Y. 1; Kountze v. Helmuth, 67 Hun, 343, 348; 51 St. Rep. 795; affirmed, 140 N. Y. 432 ; 55 St. Rep. 798; and other cases. In Webster v. Trust Co., 145 N. Y. 275; 64 St. Rep. 698, it appeared that the main building was on the street line, and the question involved was whether “a purchaser can be excused from performance because of a slight projection of the water table and stoop beyond the street line, where such projection is visible on inspection.” The decision there does not pass upon the effect of latent encroachments, which is the question involved here. Whether the slight encroachment of the northerly wall is an objection which might have been obviated by an award of compensation need not be discussed. The conclusions of the trial judge were also based upon the more serious encroachment on the street, and his judgment thereon is unassailable. The plaintiff being entitled to recover back his deposit, it follows as a necessary consequence that the defendant’s counterclaim for affirmative relief is devoid of merit. It was therefore properly dismissed.

The judgment must be affirmed, with costs.


text:
    Christopher Malloy, App’lt, v. New York Real Estate Association, App’lt, et al., Resp’t.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    1. Ne»li9b:nce — Elevator.
    The duty of providing trap doors to an elevator shaft is owing to every one who may be lawfully on the premises ; and its fulfillment is not dependent upon the action of the department of buildings or the fire department.
    3. Same.
    Where the building is let to different tenants, such duty falls upon the owner, and not upon the occupants separately or collectively.
    Appeal from a judgment entered on a verdict, and from orders denying motions for new trials.

      Tracy, Boardman & Platt, for pl’ff; Charles C. Nadal, for def’ts.
   McAdam, J.

— The plaintiff, a drayman, having been injured on May 29, 1890, by falling down a freight elevator shaft at Nos. 10 and 21 Thomas street, this city, brought suit against the New York Eeal-Estate Association, a domestic corporation, which owns the building, and Nathan T. Porter and his copartners, who, under the firm name of Porter Bros. & Co., were lessees of all that part of the building above the store floor. Preceding the accident, one Maxson, an employe of Porter Bros. & Co., raised the elevator up to their floor. While it was there, the plaintiff, seeing the guard chain hung to one side of the entrance, and not stretched across, supposed that the elevator was in its place on the ground floor, and walked in, falling down the well hole into the basement. Maxson testified that at the time he raised the elevator the guard chain was stretched across the elevator entrance, so that no one could get to the shaft. The jury believed this testimony, for they found a verdict in favor of Porter Bros. & Co.; and this finding, being satisfactorily sustained by the evidence, may be accepted as establishing that there was no personal -negligence or liability on their part. It is of no consequence who removed the guard chain, so long as the act is not legally attributable to Porter Bros. & Co., for there is no principle on which they can be held for the tortious negligent acts of strangers. Donnelly v. Jenkins, 58 How. Prac. 252. Since they were not tenants of the first floor, whatever statutory duty may have imposed to provide trap doors for the elevator opening on that floor did not affect them. If they were lessees of the entire building, a different rule might be applicable. Indeed, the theory of the plaintiff’s case against Porter Bros. & Co., as developed by the evidence, is that, if the chain had been stretched across the elevator entrance, the accident would not have happened. Bnt, as the proofs exonerated them from all - neglect of duty in this regard, the action as to them utterly failed.

The jury went further. They brought in a verdict against the New York Eeal-Estate Association, the owner of the building, in the constructive, but not actual, possession thereof; and the serious question presented is whether there is any evidence upon which the association, as owner and lessor out of possession, can be held liable for the injuries complained of. The existence of the well hole, or the absence of trap doors bn the first floor, was not, in and of itself a nuisance; it could become such only by the operation of some statute. The elevator itself furnished ample safety while resting at the first floor, and, while on the floor below or above, the guard chain, if in proper position, prevented approach to the opening. The plaintiff, to sustain his action against the owner, relies upon the statute which requires that the openings in each floor of such a buildingshall be protected by such a substantial railing, and trap doors to close the same as shall be approved by the superintendent of buildings, and that such trapdoors shall be closed at all times, except when the elevator is in ftctual use. Laws 1871, chap. 625, § 16 , Laws 1874, chap. 547, § 5 ; Laws 1882, chap. 410, § 487 He also invokes what is known as the “-factory act” (Laws 1887, chap. 462), the title and provisions of which, however, show that it has no application whatever to the case. It is undoubtedly true that, where a specific duty is imposed by statute upon an owner or occupant of property, and he fails to perform it, any person who sustains special injury in consequence may maintain an action on the case against the wrongdoer. McAlpin v. Powell, 70 N. Y. 126 ; Willy v. Milledy, 78 N. Y. 310 ; Knupfle v. Ice Co., 84 N. Y. 488, and kindred cases. The duty to provide the trapdoors required by the acts of 1871, 1874, and 1881, supra, is owing to every one who may be lawfully on the premises ; and its fulfillment is not dependent upon the action of the department of buildings or the fire department. McRickard v. Flint, 114 N. Y. 222 ; 23 St. Rep. 100. And, the building having been let to different tenants, the duty imposed fell upon the owner, and not upon the occupants separately or collectively. If the statutory duty had been fully performed, the accident, in all probability, would not have happened; indeed, it might have been made impossible. The jury evidently found that the wrong resulted from the owner’s breach of this duty, and that the neglect was the proximate and responsible cause of what followed. They also found from the evidence, and the inferences to be drawn from it, that the plaintiff was lulled into a sense of security, and was free from any negligence contributing to the injury; and they awarded him $4,000 damages. The verdict is moderate in amount, and the exceptions without merit. It follows that the judgments and orders appealed from must be affirmed, with costs to the respective respondents.


text:
    Leon Michael, Pl’ff, v. Louis Kronthal, Def't.

      (New York Superior Court, Special Term,

      Filed June, 1895.)

    1. Master and servant — Compensation.
    Under an agreement by defendant to render services to plaintiff for twenty per cent, of the net profits of the latter’s business, to be paid at the termination of the contract, and to receive $40 per week, to be charged on account of his share of such net profits, the defendant is entitled to the $40 per week without regard to the profits or losses of the business and at the expiration of the agreement the amount received is to he charged against the profits.
    3. Istjukctiost— Rustrainins actioju
    An injunction, at the instance of the defendant, will not lie to restrain an action for the reason that he has a counterclaim exceeding the jurisdiction of the court or that the plaintiS is impecunious, where the counterclaim existed at the time the contract sued on was made.
    Motion" to continue an injunction pendente lite.

      Blumenstiel & Hirsch, for motion; H. H. Ritterbusch, opposed.
   McAdam, J.

— The defendant entered plaintiff’s employment as salesman December 12, 1894, under a contract providing (1) for the payment to defendant for the services to be rendered by him of a sum equal to twenty per cent, of the net profits of the business conducted by plaintiff, to be paid by the plaintiff at the termination of the agreement, to wit, December 12, 1895; (2) that the defendant receive $40 per week, and that the same be charged on account of his share of said net profits. The parties differ as to the construction to be placed upon the instrument. The defendant claims he is entitled to $40 per week. At the expiration of the year the profits are to be figured up. IE they exceed $40 per week, he shall have the overplus; otherwise he shall be charged with $40 per week, and credited with the share of the profits coming to him, the balance as then determined to be a debt owing by him to the plaintiff. The plaintiff appears to have assented to the construction of the contract by paying to the defendant the sum of $40 per week thereunder up to June 8,1895, when he declined to continue the payments. He now claims that by the contract the defendant is entitled to $40 per week, “provided the said defendant’s share of the profits of the plaintiff’s business under said agreement shall amount to $40 per week,” and not otherwise; that there have been no profits for several weeks past, and consequently the der fendant is entitled to nothing. It is plain, from an inspection of the contract, that the defendant’s contention is right; and this conclusion is aided and confirmed by the construction which the parties themselves have by their acts put upon the instrument. Chicago v. Sheldon, 9 Wall. 50, 54; Topliff v. Topliff, 122 U. S. 121, 131; French v. Pearce, 8 Conn. 439 ; Onthank v. Railroad Co., 71 N. Y. 194, 197 ; Jennison v. Walker, 11 Gray, .423; Bish. Cont. § 598. The employment was by the year, and it is well understood that profits vary according to the season and business prosperity ; so that it would be next to impossible to determine the net gains for the term until the expiration of the year, and hardly half of the time had run when the plaintiff undertook to strike a balance in his own favor. The defendant, following out his theory ■of the contract, brought an action in the Ninth judicial district court to recover the $40 due thereon for the week ending June 8, 1895, and threatens to institute weekly actions for said sum until the termination of the contract. The plaintiff thereupon brought this action, founded on his construction of the contract, to recover the sum of $478.79 as moneys overdrawn by the defendant, and .$700 on a note indorsed by the defendant, which fell due January I, 1894. The contract in question was made nearly twelvemonths after the maturity of this note. The plaintiff seeks to restrain the action in the district court and to enjoin the commencement of any other action therein until this suit can be determined, basing his application apon (1) his construction of the eontraet, and (2) the fact that his counterclaim is unavailing, in the district court on account of its limited jurisdiction. As the court agrees with the defend ant in his construction of the contract, there is no equity in the* ffrst claim for relief. Having an adequate remedy at law by independent action upon the $700. note, the plaintiff must also fail on the second. True, he cannot avail himself of the $700 counterclaim in the district court action; but he knew, when he made the contract, that, in case action was brought upon it, his counterclaim.could not be introduced in. a court of limited jurisdiction, and that defendant had the right to enforce the contract therein. The defendant is, therefore, simply availing himself of privileges which both parties contemplated when they made the agreement. The further fact that the defendant is impecunious does not alter the legal status of the parties, for the plaintiff knew when he made the contract that the defendant was his debtor on the promissory note to the extent of $700, and made no provision in the agreement for its payment.

There might be cases in which a party having a counterclaim which cannot be used in inferior jurisdictions could on equitable grounds enjoin actions therein, but this is not one of them. To hold otherwise would drive the defendant out of the plaintiff’s employment, and terminate the contract, contrary to its intention, at the mere will of the plaintiff; for the weekly payment agreed upon was evidently designed to .provide the defendant with living expenses, and if that sum is cut off, he will naturally be driven to seek other means of livelihood. Equity often interferes with suits at law by injunction for the purpose of preventing or stopping useless or vexatious litigations. H;l. Inj. (3d ed.) 292, § 41. The suit brought by the defendant, and those which he threatens to bring, are founded on the plaintiff’s breach of an express promise to make the defendant certain weekly payments, on which an independent right of action accrues as fast as each matures. Such actionsxcan neither be called useless or vexatious, for they have legal sanction, and spring from the very nature of the contract and plaintiff’s default. The defendant cannot be compelled to put the claims into one suit, for this would require him to wait nearly six months, until all the payments become due; and the contract stipulates that he is to receive the stipulated stipend weekly. Whatever is due when suit is brought may be included therein, or it will be barred. Smith v. Dittenhoefer, 1 City Ct. R 143. Beyond this, the defendant is under no legal restraint.

An application to a court of equity for the exercise of its prohibitory powers or restrictive energies must come recommended by the dictates of conscience, and be sanctioned by the clearest principles of justice. The plaintiff, knowing that the defendant owed $700 on the note, employed him to perform services, not in payment or reduction-of the debt, but for $40 per week, to be-paid promptly as the services were rendered, the one being deemed the equivalent of the other; and this result can be accomplished just as the parties intended. The plaintiff may use his demand as a counterclaim to whatever extent the law permits, but there is no equity which entitles him to have the counterclaim so allowed extended to meet the peculiar situation in which he, by his own voluntary acts, has placed himself.

For these reasons the motion to continue the injunction must be denied, and the temporary injunction dissolved.


text:
    Diedrich Brandt, as Executor, etc., Pl'ff, v. Maria Brandt, Def’t.

      (New York Superior Court, Equity Term,

      Filed June, 1895)

    1. Will — Power of alienation.
    A provision in a will, which attempts to create a trust in the executors, to receive the rents, issues and profits of the real and personal estate, and deposit the said income in a savings hank until the expiration of ten years from the death of the testator, unlawfully suspends the power of alienation.
    2. Same — Void clause.
    A void clause, which cannot he separated from the general scheme of the will without defeating testator’s intention, avoids the whole will.
    Action to obtain construction of a will.

      Benjamin A. Jackson, for pl’ff; C. J. McDermott, for infant def’t Elliott and Louisa M. Baur; S. C. Carleton, for infant def’t C. G. P. Baur.
   McAdam, J.

— Antje Hargens died in this city, February 15, 1893, leaving a will of real estate and personalty, dated July 11, 1885, which has been duly admitted to probate. The first clause of the will directs the payment of the decedent’s debts; the sixth, and last, nominates and appoints the executors. The other clauses are submitted for construction. The fourth paragraph, and the one on which the validity of the will depends, attempts to create a trust in the executors, to receive the rents, issues and profits of the real and personal estate, and deposit said income in a savings bank until the expiration of ten years from the death of the testatrix, when the trustees are authorized to sell the property, and divide the proceeds, as well as the moneys accumulated during the period named, among the children of the testatrix, except John Gr. H. Hargens, to whom a life estate in one small house is given by the second clause of the will. The accumulation is not for the benefit of a minor, but for persons of full age, and the power of alienation is not made to depend upon two lives in being at the creation of the estate, but is suspended for ten years from its commencement. The suspension being for an absolute period, the disposition attempted to be made, and the. trust the testatrix attempted to create, are unauthorized and void. 4 Bev. St. (8th ed.) p. 2434, § 37; Id. p. 2432, § 15 ; Id. p. 2437, § 55 ; Chapl. Suspen. § 91. In Rice v. Barrett, 102 N Y. 161, the testator gave his residuary estate to trustees, to invest and keep invested in safe securities until ten years after his death, at the expiration of which time the estate was to be divided among his children and representatives of deceased children. The court said, at page 164, 102 N Y.:

“It is apparent that the testator intended that his residuary estate should remain in the hands of his executors for the simple purpose of accumulation for the period of ten years after his death. The trust is not made determinable with or within any two ascertained lives, nor is it limited by life, but during the whole of that fixed term it is inalienable. * * * The direction concerning it is therefore, in violation of the statute, which in terms prohibits such suspension 1 by limitation or condition whatever, for a longer period than during two lives in being at the creation of the estate.’ ”

In Underwood v. Curtis, 127 N. Y; 40 St. Rep. 255, it was held that the duration of the suspense in a trust of personal property, like a trust in real estate, must be founded on lives. No term of years, however short, will satisfy the statute. See, also, Schettler v. Smith, 41 N. Y. at page 335; Lewis, Perp. 170 ; Smith v. Edloards, 88 N. Y. 92; Cruikshank v. Home for the Friendless, 113 id. 337; 22 St. Rep. 738. The construction of a will must depend upon the intention of the testator, to be ascertained from a full view of everything contained within the four corners of the instrument. Hoxie v. Hoxie, 7 Paige, 192. And, in determining the intention, “the testator must be deemed to have been ignorant of the trust, and to have intended that it should be performed; and this precludes the presumption that he could have intended a different disposition of the property.” Van Nostrand v. Moore, 52 N. Y. at page 22.

This leads us to consider the effect of the illegality of the fourth paragraph upon the other clauses of the will. These are made dependent upon the operation of the fourth as a valid trust and disposition of property. Indeed, with the fourth clause out the general scheme of the testatrix fails ; and, as a result, no effect can be given to any dependent part of the will. Holmes v. Mead, 52 N. Y. 332. If the clauses were independent, some of them might be upheld. Van Schuyler v. Mulford, 59 N. Y. 426. But that is not this case. The testatrix had but one scheme in view, which could be effectuated only by carrying into effect all the provisions of the will, and the failure of the main provision frustrates her entire purpose. If the life estate given to John Gf. II. in the second clause were permitted to stand as an independent provision, he would (with the fourth clause avoided) take an interest in fee in the other realty of the testatrix, contrary to her intention, as expressed in said fourth paragraph. In Darling v. Rogers, 22 Wend. 495, the rule is stated that: “When a will is good in part and bad in part, the part otherwise valid is void if it works such a distribution of the estate as, from the whole testament taken together, was evidently never the design of the testator.” In the Tilden Case, the court, referring to the rule that applies in certain cases where several trusts are created by a will, which are independent of each other,, and each1 complete in itself, some legal and some illegal, that the illegal trusts may be cut o££¡ and the legal permitted to stand, says:

“This rule can only be applied in aid and assistance of the manifest intent of the testator, and never where it would lead to a, result contrary to the purpose of the will, or work injustice among the beneficiaries, or defeat the testator’s scheme for the disposal of his-property. The rule, as applied in all reported cases; recognizes this-limitation, that, when some of the trusts in a will are*legal and some illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion was retained and other portions rejected, or if manifest injustice would result from such construction to the beneficiaries, or some of them, then all the trusts must be construed together, and all must be held illegal and must fall.” Tilden v. (Green, 130 N. Y. 50 ; 40 St. Rep. 512.

The same rule was applied in Benedict v. Webb, 98 N. Y. 460. There the testator created separate trusts in two-thirds of his estate for the benefit of his four' children. Three of the trusts were held, valid, but the fourth was declared void, the court saying:

“We should feel disposed to sustain the trusts in favor of the other children, except for the reason that to uphold, those, while setting aside the trust in favor of Anna Augusta, would seriously interfere with the intention of the testator that all the children and their issue should share equally in his estate, and would produce great injustice. The result of sustaining the trusts in favor of the other children would be that each would take one-fourth share of the estate, and also, as heirs and distributees,, an equal share with Anna Augusta in the share intended for her. No case, we think, can be found, which would justify upholding apart of a will, when by so doing it would produce such manifest injustice.”

For these reasons the plaintiff is entitled to judgment declaring the will void, excepting the first and sixth provisions thereof.


author: Gildersleeve, J.

text:
    Mary Walsh, as Administratrix, etc., et al., App’lt, v. Manhattan Railway Company, Resp’t.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    Appeal — Direction op verdict.
    A judgment, .entered on a verdict directed by the court, will not be disturbed on an appeal solely therefrom, where the appeal book does not contain the testimony taken on, or the rulings of the court, during the trial, o
    Appeal from a judgment, entered on a verdict in favor , of defendant.

      S. C. Herriman (George Zabriskie, of counsel), for app’lts; Davies, Short & Townsend (Julien T. Davies and Jos. H. Adams, of counsel), for resp’t.
   Gildersleeve, J.

— This is an action to recover the statutory damages for death through defendant’s alleged negligence. After both sides had rested, the case was submitted to the jury ; and, after the jury had retired to deliberate, the court ordered a sealed verdict. The following morning, on the opening of the court, the jury brought in a sealed verdict, which, on being opened, was found to be for the defendant. On the jury being polled, however, one of them said he had changed his mind over night. The court thereupon directed a verdict for the defendant, which was entered accordingly. The counsel for the plaintiffs at once moved that a new trial be granted, and the motion was denied. No appeal has been taken by the plaintiff from the order denying the plaintiffs’ motion for a new trial. The appeal which we are asked to consider is from the judgment. The appeal book does not contain the testimony taken upon the trial, or the motions, whatever they may have been, they were made by defendant previous to the submission of the case to the jury. The court certainly had the power to direct a verdict, and since the testimony is not before us, and the appeal book does not contain the rulings of the court in the progress of the trial, we cannot consider the merits of the rulings of the learned trial judge. There is no evidence before us, and it is therefore impossible to say whether the verdict was correctly or erroneously directed. There is nothing in the appeal book upon which the general term can properly be asked to reverse the judgment.

It therefore follows that the judgment appealed from must be affirmed, with costs to the respondent.


author: Freedman, J.

text:
    Benjamin Weeks, Resp’t, v. James O’Brien, as Executor, etc., App’lt.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    Pleading — Amendment—1Terms.
    Where, on an appeal to the court of appeals the complaint was held to be defective, but the plaintiff brought the case on for trial again without asking for leave to amend, a subsequent application for leave should be granted to plaintiff to amend on the trial only on the condition of his paying the cost of the action, including the costs of the general term, where the amendment involves a radical change of the cause of action and the plaintiff is wholly insolvent.
    Appeal from an order, granting leave to the plaintiff to amend his complaint on payment of $50.

      Abram Kling, for app’lt; George W. McAdam, for resp’t.
   Freedman, J.

— To a just and proper derermination of the present appeal rt is necessary to consider the history of this case. In 1882 an action was brought in the supreme court by a brother of plaintiff, as his assignee, against Ella O’Brien, the defendant’s testatrix, upon the contract mentioned in the complaint of this action, and upon a trial of the said action the complaint was dismissed, with $825 costs to the defendant, and upon appeal from the judgment the appeal was dismissed, with $62 costs to the defendant. Neither of these costs have ever been paid. The claim

was subsequently reassigned to the plaintiff, and he thereupon, in 1887, instituted this action upon it in this court against defendant’s testatrix. Upon the trial of that action plaintiff’s complaint was dismissed on the ground that, whereas the action was upon the building contract, and the complaint alleged full performance, the plaintiff had never secured the architect’s certificate, which, by the contract, was a condition precedent to a right of recovery; and that the complaint failed to state facts constituting an excuse for not procuring the certificate. The judgment entered upon such dismissal was affirmed by the general term. Upon plaintiff’s appeal to the court of appeals it was also held that the complaint, for the reasons above stated, was fatally defective (Weeks v. O'Brien, 141 N. Y. 149; 56 St. Rep. 813). but the court of appeals reversed the judgment and ordered a new trial on the ground that defendant’s counsel, on his cross-examination of the plaintiff, had examined him on new matter not involved in his direct examination, but relating to defendant’s counterclaim, and in this way had brought out facts from which it appeared that after all the certificate of the architect was no longer necessary. t After all these admonitions that the complaint was insufficient to sustain a recovery under it unless the defendant saw fit to waive a point, the plaintiff, without having made any applicaiion for leave to amend, again brought his case on for trial. But this time defendant’s counsel rendered no assistance. From the very start he insisted that the plaintiff should be compelled to prove his case as he had alleged it, and all testimony sought to be given by the plaintiff to establish an excuse for not obtaining the certificate was duly objected to, and thereupon excluded by the trial judge. The futility of further proceeding having become apparent, the plaintiff asked leave to withdraw a juror for the purpose of moving at special term for leave to amend his complaint. The motion was granted upon condition that the question of terms, inclusive of the terms which might have been imposed by the trial judge, should be reserved for consideration at special term on the hearing of the motion for leave to amend. It was under these circumstances that the motion last referred to was heard and granted at special term. The plaintiff was not entitled, as matter of right, to have the proposed amendment allowed. The granting of the motion and the terms to be imposed as a condition, rested in the sound discretion of the court. The amendment involved a radical change of the cause of action from one based on full performance of the contract to one of partial performance by the plaintiff, and waiver of full performance and acceptance of the incomplete work by the defendant. Under these circumstances, and considering the consequences likely to flow from the granting of the amendment, and in view of the defendant’s contention that the plaintiff is wholly insolvent, the terms imposed were inadequate. In the exercise of ajust discretion, the plaintiff should have been required to pay the costs of the action in this court, inclusive "of the costs of the former general term.

The order appealed from should be modified accordingly, and, as thus modified, affirmed, with $10 costs and disbursements.


author: Martin, J.

text:
    In the Matter of Will of Orville Elmer, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Appeal — Surrogate.
    The finding of a surrogate, on conflicting evidence, in regard to the question whether a will was executed as required by the statute, will not be disturbed on appeal.
    Appeal from a decree, denying probate of a will.

      H. W. Coley, for app’lt; Timothy Curtin, for resp’ts.
   Martin, J.

— The only question which seems necessary to be determined on this appeal is whether, under the proof, the alleged will of the decedent was properly and legally executed. The statute relating to the execution of wills of real and personal property provides:

“ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:

1. It shall be subscribed by the testator at the end of the will.

2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting' witnesses.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so described, to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. ” Rev. St. (8th. ed.) p. 2547, § 40.

The learned surrogate before whom this proceeding was had found as facts:

“ That the decedent did not exeéute the proposed will in the presence of the subscribing witnesses; that the will was not signed by him in the presence of the subscribing (witnesses) Greorge E. Wright and Charles E. Arnold; that he did not declare it to be his last will and testament to the subscribing witnesses ; that he did not acknowledge the signature to the said instrument to be his signature, to the subscribing witnesses, and that the attestation clause to said will was not read over to the subscribing witnesses, or either of them, and that neither of the subscribing witnesses read the same; that the decedent did not request the subscribing witnesses, Greorge E. Wright and Charles E. Arnold, to subscribe said paper as a witness; and that the will propounded was not executed according to the requirements of the statute.” '

As a conclusion of law, the surrogate’s court held that the paper propounded as the last will and testament of Orville Elmer, deceased, was not properly or legally executed; that the same was invalid and void as such; and that it was not the last will and testament of Orville Elmer, deceased. The court also held that the alleged will should not be admitted to probate, and that the decedent died intestate, leaving no last will or testament. A careful examination of the evidence contained in the appeal book renders it quite manifest that the learned surrogate was justified in finding that the alleged will of the decedent was not executed according to the requirements of the statute. While the evidence of the subscribing witnesses was perhaps contradictory, and the circumstances attending the execution of the will somewhat uncertain, yet, in view of the proof and circumstances disclosed, it is quite clear that the question as to whether the will was properly executed as required by the statute was a question of fact, to be determined by the surrogate’s court. As was said by Ruger, C. J., in Re Cottrell’s Will, 95 N. Y. 329, 336:

“The determination of the question of fact involved in the inquiry as to whether a will has been properly executed or not is governed by the same rules which control in the trial of other questions of fact. The proponent has the affirmative of the issue, and if he fails to convince the trial court, by satisfactory evidence, that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will.”

We are of the opinion that the findings of the learned surrogate were justified by the evidence, and that his decision refusing probate of the proposed will is sustained by authority. Lewis v. Lewis, 11 N. Y. 220: Mitchell v. Mitchell. 16 Hun, 97; affirmed, 77 N. Y. 596; Wooley v. Wooley, 95 N. Y. 231; In re Will of Mackay, 110 id 611; 18 St. Rep. 558; In re Van Geison, 47 Hun, 5; 14 St. Rep. 117. It follows that the decree of the surrogate’s court should be affirmed.

Decree affirmed, with costs to the respondents, payable out of the estate.

All concur.


text:
    Mary E. France, as Administratrix, etc., Resp't, v. Rome, Watertown and Ogdensburg Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Master and servant — Appliances.
    A railroad company is not bound to change the arrangements to secure greater safety to its employes, where the dangers to which the latt'er are exposed are known and obvious. So, held, in case of a failure to equip its trains with air brakes, instead of hand brakes, at a time when the latter were considered reasonably safe and suitable.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      D. G. Griffin, for app’lt; William, Tiffany, for resp’t.
   Martin, J.

— This action was to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The accident in which he was killed occurred at Garlyon, on the 27th day of July, 1883. The decedent was an employe of the defendant. He was a fireman upon one of the engines drawing the train to which the accident occurred. He had been employed in that capacity for about two years, and had been otherwise employed upon the defendant’s road for several years before he commenced work as a fireman. The train to which the disaster occurred, besides the two engines drawing it, consisted of six Wagner sleeping cars, three sleepers of the defendant, a day coach, and baggage car. At Carlyon there was a branch track leading from the defendant’s main track, and upon it had been left a freight car, standing some distance from the main track. During a heavy storm of wind and rain which shortly preceded the accident, this freight car had been blown from the branch so as to obstruct the main line, which was the cause of the diaster that followed. This obstruction was not discovered until the engine was within three or four rods of the car, when a signal for brakes was immediately given and the engine reversed, but the collision followed, resulting in the derailment of the two engines, the baggage car, the day coach, and the three sleepers of the defendant. The decedent fell under the engine or tender, and was killed. The train was not equipped with air brakes, and at the time none of the defendant’s trains were thus equipped, but hand brakes were used by the defendant upon all its trains. There were but two or three brakemen upon the train. The only grounds of the defendants’ negligence which the learned trial judge submitted to the jury were: (1) Whether the defendant was negligent in not equipping its train with air brakes; and (2) whether it was negligent in not furnishing a greater number of brakemen. He also submitted to the jury the questions whether the defendant’s omission to equip its train with air brakes, or its failure to furnish additional brakemen, contributed to or caused the injury which resulted in the decedent’s death.

The first question presented for consideration in this case is as to the propriety of the submission to the jury of the question of * the defendant’s omission to furnish air brakes upon its train, as a ground of negligence entitling the plaintiff to recover if it contributed to the injury complained of. At the time of the accident the use of air brakes may be said to have been in its infancy, and their practical efficiency was not, perhaps, thoroughly established. While it was shown that they had been adopted and were in use upon several railroads in the state#still the evidence failed to show that they were in general use. The question of their efficiency in controlling the movement of trains was not at that time as well understood as now. We think the court improperly submitted to the j ury the question of the defendant’s negligence based upon its omission to supply its cars with air brakes. It was held in Burke v. Witherbee, 98 N. Y. 562, that the master does not owe to his servant the duty to furnish the best known or conceivable appliances He is simply required to furnish those that are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. The doctrine of that case was followed in Probst v. Delamater, 100 N. Y. 266 ; Marsh v. Chickering, 101 id. 396; Bajus v. Syracuse, etc., Railroad Co., 103 id. 312, 318 ; 3 St. Rep. 96; Hickey v. Taaffe, 105 N. Y. 26 ; 6 St. Rep. 426; Lafflin v. Buffalo & S. W. Railroad Co., 106 N. Y. 136; 8 St. Rep. 596; Stringham v. Hilton, 111 N. Y. 188 ; 19 St. Rep. 651; and Harley v. Buffalo Car Manufacturing Co., 142 H. Y. 31; 58 St. Rep. 437.

Another well-settled rule of the law of negligence is that, as a general rule, a servant entering into an employment which is hazardous assumes the usual risks and perils of the service, and those which are apparent to ordinary observation, or which he must have known if he exercised ordinary care and observation ; and when he accepts or continues in the service with the knowledge of the structures or implements used from which injury may be apprehended, he assumes the hazards incident to the situation. Gibson v. Railway Co., 63 N. Y. 449 ; Mehan v. Railroad Co., 73 id. 585; De Forest v. Jewett, 88 id. 264; Powers v. Railroad Co., 98 id. 274; Appel v. Buffalo, N. Y. & P. Railroad Co., 111 id. 550; 20 St. Rep. 90; Williams v. D., L. & W. Railroad Co., 116 N. Y. 628; 27 St. Rep. 760 ; Odell v. N.Y.C.& H. R. Railroad Co., 120 N. Y. 323 ; 31 St. Rep. 27; Davidson v. Cornell, 132 N. Y. 228; 43 St. Rep. 877. It seems, also, that a master may carry on his business with odd appliances and machinery not provided with all the safeguards that are attached to newer ones, and that he has,the right to arrange his own premises and appliances in a way which suits his convenience, and is not bound to change the arrangements to secure greater safety to his employes, where the dangers to which the servant is exposed are known and obvious. Sweeney v. Envelope Co., 101 N. Y. 520; Bajus v. Syracuse, etc., Railroad Co., 103 id. 312; 3 St. Rep. 96; Anthony v. Leeret, 105 N. Y. 591; 8 St. Rep. 542 ; McDugan v. N. Y. C. & H. R. Railroad Co., 10 Misc. Rep. 336; 63 St. Rep. 616.

Applying these rules to the facts, it becomes obvious that the .plaintiff was not entitled to recover in this action upon the ground of the defendant’s omission to equip its train with air brakes; that the court erred in submitting that question to the jury, and in refusing to charge that the evidence was insufficient to justify the jury in finding the defendant liable for negligence in that respect. As we have already seen, the plaintiff’s intestate had been in the employ of the defendant for several years, and had been a fireman upon its engines running over the road for about two years. There were no air brakes used by the defendant upon any of its trains, and never had been up to the time of the accident. This fact must have been known'to the decedent, and he must have accepted and continued in the defendant’s service with a full knowledge of that fact, as it was clearly apparent to ordinary observation. He therefore assumed the risks and perils of the service with the machinery and appliances used by the defendant, and it was not bound to change its machinery or appliances to secure greater safety to him. That the hand brakes were at the time of this accident regarded as reasonably safe and suitable there can be little doubt, and the defendant was not, we .think, bound to furnish its employes with the best known or conceivable appliances. Thus it is manifest that the learned trial judge erred in submitting to the jury the question of the defendant’s negligence based upon its omission to equip its train with air brakes.

Again, an examination of the evidence renders it extremely doubtful if there was any proof that the omission of the defendant to furnish air brakes contributed to or was the cause of the decedent’s injury. The appellant’s claim that this accident would not have occurred if the train had been supplied with air brakes does not seem to be supported by the evidence, and is at best merely speculative and conjectural. In Webster v. Railroad Co., 40 Hun, 161, 162, which arose out of this accident, and was an action by a passenger, Haight, J., who delivered the opinion of the general term, said: “It further appeared that there were no air brakes upon the train, that the cars were supplied with the old hand brakes; but we are of the opinion that no negligence chargeable in this regard contributed to or caused the injury, for it distinctly appears, from the testimony of all the witnesses who have given evidence upon the subject, that had the train been supplied with air brakes they could not have been set in time to prevent the collision or to have lessened its effect.”

Whether the defendant was negligent in not furnishing a greater number of brakemen is not, perhaps, important, in view of our conclusion as to the preceding question. If, however, it were assumed that the defendant’s omission to furnish a greater number of brakemen constituted negligence upon its part, it may be said that it is at least doubtful if the evidence was sufficient to justify the jury in finding that that omission contributed to or caused the injury which resulted in- the death of the plaintiff’s intestate. Without further discussion of this case, we are clearly of the opinion that the court erred in submitting to the jury the question of the defendant’s negligence based upon its not equipping its train with air brakes, and that for that error the judgment should be reversed.

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

All concur.


text:
    Harvey Frink, Resp’t, v. Jacob Stevens, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Appeal — Harmless error.
    Where the admission of incompetent evidence on the trial of an action in a justice’s court, is, at most, a technical error, which does not affect the merits, it is properly disregarded, on appeal, by the county court.
    Appeal from a judgment of the county court, modifying and affirming a judgment rendered in favor of the plaintiff by the justice without a jury.

      Bouton & Champlin, for app’lt; Nathan L. Miller, for resp’t.
   Martin, J.

— This action was for damages to the plaintiff’s mare, alleged to have been caused by the defendant’s wrongfully, illegally, and maliciously unhitching her and driving her out of his barn, through a doorway twenty feet above the ground, onto a barbed-wire fence, whereby she was injured, to the plaintiff’s damage of $40. The defendant appeared before the justice on the return day of the summons, but interposed no answer. He called for a jury, but, when informed that he must first join issue in the case, he left the court, and did not return. There was no direct evidence given on the trial showing that the defendant was guilty of the act charged, but the circumstances testified to tended to show that he performed the acts complained of, and were sufficient, we think, to justify the trial court in so finding. If it be assumed that the statement of the witness as to what Dr. Baker said as to the extent of the injury to the mare was inadmissible, yet we think the judgment should not be disturbed upon that ground, as it is manifest that it could not have affected the result. It had no bearing upon the question whether the defendant committed the injury complained of, and upon the question of damages the witness testified that he had owned a good many horses, bought and sold them, knew their value, and then gave his opinion as to the value of the mare in question before and after she was injured. Thus the only evidence of the plaintiff’s damages was the opinion of the witness, without any regard to what the doctor had said to him. If, therefore, it was error to admit this evidence, it was, at most, a technical one, which did not affect the merits, and was properly disregarded by the learned county court. Code Civ. Proc. § 8063. We think the judgment of the county court was right, and should be affirmed.

Judgment of the county court affirmed, with costs.

All concur.


author: Dykman, J.

text:
    The People ex rel. Edward A. Gaus, App’lt, v. Leonard R. Welles, as Police Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Municipal corporation — Police—Discharge.
    Evidence which, instead of proving the relator guilty beyond a reasonable doubt, preponderates strongly in his favor, is not sufficient to sustain a decision, discharging him for intoxication.
    Certiorari to review the decision of the police commissioner in removing relator from the police force.

      Hirsh & Rasquine, for pl’ff ; Jacob Brenner, for def’t,
   Dykman, J.

— This is a certiorari to review the proceedings of the police commissioners of the city of Brooklyn in removing the relator from the office of sergeant of police of that city. The specific charge against the relator was that on the 19th day of January, 1895, he violated section 5 of rule 24, by being under the influence of liquor, and unfit for duty, in front of the car house of the Halsey street car line, at about 12:30 o’clock in the afternoon. The relator was tried before the defendant, and two witnesses testified against him. Their testimony is neither satisfactory nor convincing. In answer to their testimony, nine witnesses testified in favor of the relator. Their opportunities for observing the relator were at least equal to those of the two witnesses who gave evidence against him, and they saw no indication that the relator was intoxicated. Some of these witnesses were with the relator during the forenoon of the day, and saw him drink nothing but coffee. There is no proof that the relator drank any spirituous liquors on the day he was sent to the station, and on which he is charged with being intoxicated. Moreover, the trial was conducted by the defendant without a proper regard to legal rules. The evidence against the relator consisted almost entirely of the opinions of the two witnesses who testified against him. The relator had been a member of the police force of the city of Brooklyn for twenty odd years, and had been promoted through the grades of roundsman, patrolman and sergeant. It is almost inconceivable that the relator, who had been free from intoxication in the past, whose character and conduct had earned him his promotion, and against whom no charge had been made in the past, should suddenly, in midday, while employed in the discharge of a dangerous duty, become intoxicated and incapable of performing his duties. It is to be observed, however, that the relator was engaged in placing men upon the cars when he was sent to the station house charged with intoxication. There is no proof that he had been absent from his post of duty to enable him to obtain liquor, and there is not the slightest proof that he did obtain any liquor that day. Instead of proving the relator guilty beyond a reasonable doubt, the evidence preponderates strongly in his favor.

In no view can the conviction of the relator be sustained, and the proceedings should be reversed, and the relator restored, with. $50 costs.


author: Brown, P. J. Pratt, J.

text:
    William De Bevoise, Resp't, v. William Ingalls et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Appeal — New trial ix justice’s court.
    A new trial in justice’s court, on an appeal from a judgment by default, rendered by a justice of the peace, cannot be granted, unless the appellant gives a satisfactory excuse for not appearing before the justice.
    Appeal from a judgment, directing a new trial in the justice’s court.

      George A. Wyre, for app’lts; A. S. Tompkins, for resp’t.
   Brown, P. J.

— The appeal from the justice’s judgment was heard by the county court upon the justice’s return. The court had power to reverse the judgment, but no power to direct a new trial. Section 3064 of the Code of Civil Procedure was not applicable to the facts of the case. That section empowers the county court to direct a new trial only when the appellant “ renders a satisfactory excuse for his default.” Ho affidavits were read on the argument of the appeal, and no excuse was shown why the appellants did not appear before the justice of the peace. The county court is a tribunal of limited jurisdiction, and can exercise, on appeal, only such powers as are conferred upon it by statute. It was error, therefore, for the court to order a new trial,, and the part of the judgment appealed from must be reversed,, with costs.

Dticman", J., concurs.

Pratt, J.

(dissenting). — This case is regulated by Code, section 3064, which is as follows, viz.:

“IE the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or ,at the time to which the trial of the action was adjourned and he shows by affidavit or otherwise that manifest injustice has been done and renders a satisfactory excuse for his default, the appellate court may in its discretion set aside the judgment appealed from, and by order direct a new trial before the same justice or before another justice of the same county * * * upon such terms as it deems proper.”

Section 3066 is as follows :

“ * * * If a new trial is before the same or another justice * * * the costs of the appeal are within the discretion of the appellate court.”

It is to be noticed that the defendant rendered no satisfactory excuse for his default, and that the judgment was not reversed, but set aside. It was clearly in the discretion of the county judge to make the order appealed from, and it is affirmed, with costs and disbursements.


author: Pratt, J.

text:
    In the Matter of an Application by Michael T. Daly, as Commissioner, etc.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Eminent domain — Award—Apportioning.
    An award for land, owned by several persons jointly, may be confirmed in part and sent back to the commissioners to' be apportioned between the parties entitled.
    Appeal from an order, confirming in part the report of the-appraisers.

      William H. Huldane, Abram J. Miller and Frederick S. Barnum, for app’lts; Francis M. Scoti, Corp. Counsel, for resp’ts.
   Pratt, J.

— This proceeding was instituted under the above-mentioned act for the purpose of acquiring certain real estate at. Brewster, Putman county, for sanitary protection of the east-branch of the Croton river and its tributaries, which are the-sources of the water supply of the city of New York. Commissioners of appraisal were appointed in accordance with the statute, whose duties were to ascertain and determine the compensation to be made to the owners of, and persons interested in, the real estate shown on the map and described in the petition. Among other claimants who appeared before the commissioners-were the appellants, the Gouverneur heirs, who claimed to own the undivided one-third of all the mines and minerals beneath the surface of the various parcels of land included in the proceedings. The commissioners performed the duties imposed upon, them, and their report to the supreme court, in which a specific sum was awarded for each parcel of land taken. The appellants are owners of the undivided one-third of the mines and minerals beneath the surface of each parcel included in the report, and no separate award was made to them by the commissioners. The appellants filed a claim before the commissioners, and submitted their interests without the introduction of any testimony, and without any exception to the proceedings in any way. When the report was presented to the court for confirmation, an order was made by which the report was confirmed in part, and was directed to be sent back to •' the commissioners in part, to apportion the awards made for the respective parcels between the appellants and the surface owners. All the parties to the proceedings acquiesced in this order, except the Gouverneur heirs, and from the order of confirmation this appeal was taken.

In our view the order was a very proper one. The commissioners had viewed the premises, and were conversant with the facts and circumstances surrounding the proceedings. They were therefore in a position to make the apportionment and determine what sums, if any, should be paid to these appellants.

The order appealed from should be affirmed, with ten dollars-costs, and disbursements to all parties.


author: Brown, P. J.

text:
    Mary Wiley, by her Guardian, etc., Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    1. Costs — Extra allowance — Where made.
    An objection that a motion for an extra allowance should have been made to the court in which the trial was had, is not jurisdictional, but-may be waived.
    2. Same.
    When a party desires to object to the power of the court to hear a motion, or to the regularity of the proceedings of the moving party, he must seasonably take his objection and if it is overruled, see that the ruling of the court appears in the record.
    Appeal from an order, granting an extra allowance.

      W. C. Beecher, for app’lt; M. L. Towns, for resp’t.
   Brown, P. J.

— This action was first brought to trial at the circuit, and the complaint dismissed. Upon appeal to the general term the judgment was reversed, and-a new trial granted. The defendant then gave the usual stipulation for judgment absolute against it in the case of an affirmance, and appealed to the court of appeals, where the judgment of the general term was affirmed, with costs. The case then went back to the circuit to have the damages assessed, and there was a verdict in plaintiff’s favor. It does not appear from the record before us that any motion for an allowance was made at the circuit. Thereafter the plaintiff served a notice upon the defendant that upon all the evidence and proceedings in the action, and upon affidavit of plaintiff’s attorney, she would move at special term to set aside the verdict, as inadequate, and in case the verdict was not set aside, for an extra allowance in addition to costs. After hearing the parties the court refused to set aside the verdict, but granted to the plaintiff an allowance of five per cent, upon the amount of the verdict. The defendant has appealed from so much of the order as grants the allowance, upon the ground that the motion for an allowance .should have been made to the judge who presided at the trial when the verdict was rendered. We agree with the appellant’s counsel that motions of this character should be made to the court before which the trial is had. Such is the plain provision of the general rules of practice (role 44), and that rule has been uniformly construed to require application for an extra allowance to be made to the justice who presided at the trial of the cause. Hun v. Salter, 24 Hun, 640. The objection, however, is not one that goes to the jurisdiction of the court, but is a rule of practice, solely, and could be waived by the defendant. We do not find in the appeal papers that the objection now made by the appellant was taken at the special term, and not having been taken at the argument, the appellant must be deemed to have waived it. When a party desires to object to the power of the court to hear a motion, or to the regularity of die proceedings of the moving party, he must seasonably take his objection, and if it is overruled, see that the ruling of the court appears in the record. Otherwise all such objections, will, upon appeal, be deemed to have been waived. Cowenhoven v. Ball, 118 N. Y. 231; 28 St. Rep. 870.

The order must be affirmed, with costs.


author: Parker, J.

text:
    In the Matter of the Probate of the Will of Susanna McDougall, Deceased.

      (Supreme Court General Term, First Department,

      Filed June 14, 1895.)

    1. Will — Execution.
    Where one "of the subscribing witnesses to the instrument, propounded for probate, neither saw the testatrix subscribe her name at the end thereof, nor saw her signature at the time of nor before subscribing his-name as an attesting witness, there is not such an execution as the statute requires.
    2. Same.
    The evidence was held insufficient to sustain a finding that the witness signed without seeing the signature of testratrix.
    Appeal from a decree denying probate.

      Geo. W. McAdam, for app’lts; Hunter & Buttle, for resp’ts.
   Parker, J.

— The surrogate was right in holding that if John W. McDougall, one of the subscribing witnesses to the instrument propounded for probate, neither saw the testatrix subscribe her name at the end thereof, nor saw her signature at the time of nor before subscribing his name as an attesting witness, there was not such an execution as the statute requires. In re Mackay, 110 N. Y. 611; 18 St. Rep. 558; Mitchell v. Mitchell, 16 Hun, 97; affirmed 77 N. Y. 596. It is true that the court said otherwise in Willis v Mott, 36 N. Y. 486-491, but the court of appeals, in re Mackay, treated the discussion in the Willis Case on that subject as mere dictum, not entitled to the weight -of authority, and refused to allow it. While we agree with the law as stated by the surrogate, we do not think the fact is that the subscribing witness "John W. McDougall did not see the signature of the testatrix before or at the time of signing the instrument. The facts attending the attempted execution of the instrument before the court are,' that Susanna McDougall, while in Buffalo, requested her son Sidney McDougall to have her will prepared according to the directions which she gave, which was done. Thereupon she subscribed it in his presence and requested him to sign it as an attesting witness, which he did, and in her presence. A few days later she returned to her home in the city of Hew York, when she told another son, John McDougall, what she had done, and requested him to subscribe his name as witness to the execution of the instrument which she declared to be her will, and he did so. His testimony, and the whole of it, so far as it relates to the question whether he saw her signature is as follows :

“Q. She handed it to you (meaning the will) folded up? A. Yes, sir. Q. So that you did not see the signature at the time she said that? A. Hot at the time ; no. Q. And you then signed this will in her presence and in the presence of your sister, Miss McDougall? A. Yes, sir. Q. Do you remember what her identical words were when she handed you the will? A. Ho; I can’t remember her identical words. The purport was, as I have stated, it was her last will, and she would like me to put my name as a witness with that of my brother. Q. And she handed you the will folded iu such a manner that you did not see the signature ? A. Yes, sir.”

The witness gave no other testimony on this subject, and the surrogate reached the conclusion that, at the time he subscribed his name as an attesting witness, he did not see the signature of the testatrix. But the original will, which is before us, shows that he must have seen the signature at the time of signing his name, for his signature, together with his address, appears on the line next below the line upon which the testatrix signed her name and some portion thereof overlaps a portion of the signature of the testatrix. There was no fold in the paper near either signature, and it was an utter impossibility for him to sign his name without seeing her signature. Had he testified otherwise, the court, with the evidence before it which the will furnishes, would have been obliged to find as a matter of fact that the signature of the testatrix was before him at the time of subscribing his name as an attesting witness. But we think McDougall did not intend to testify that he did not see the signature of the testatrix at that time. The question addressed to him was:

“ Q. She handed it to you folded up? A. Yes, sir. Q. So-that you did not see the signature at the time she said that ? A. Not at the time; no.”.

This answer is a guarded one. Of course he did not see the signature when the instrument was handed to him folded up. He ■ was careful not to say that he did not see it at all. He answered the question as it was put, by saying, in effect, that he did not see it at the time, — namely, at the time the instrument was handed to him. Whithout further discussion of this subject, we content ourselves by saying that we find nothing in the evidence of this witness indicating that he wished the couft to understand that he did not see the signature of the testatrix upon the'instrument at the time he signed his name as a witnees thereto, while, on the other hand, the position of the signatures upon the instrument, shows conclusively, as we have observed, that he did see the signature of the testatrix.

The decree should be reversed, and the case remitted back to the surrogate’s court for rehearing, with costs to the appellant to-be paid out of the estate.

All concur.


text:
    Charles E. Lichtenhein, App’lt, v. Charles E. Fisher, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Master and servant — Wrongful discharge.
    To establish the breach of an agreement on the part of plaintiff to bring to defendant certain customers as part of the consideration of the contract of employment, it must at least appear, in an action for the wrongful discharge of plaintiff, that it was embodied in the contract of employment that, during the term of service contracted for, the employer should have the patronage of all the customers which the employe could personally control.
    Appeal from a judment dismissing the complaint.

      John Sabine Smith, for app’lt; Charles D. Ridgway, for resp’t.
   Parker, J.

— The plaintiff was employed by Charles E. Bliss for one year from May 1,1891, at a salary of $1,950 per 'annum, payable weekly. The first of May, 1899, came and went, with the plaintiff rendering precisely the same services-for Bliss as he had during the previous year, and without any other or different arrangement with him o's to compensation; Bliss paying him or each Saturday night $37.50, as during the previous year. The'presumption is, where a party enters the service of another, at a stipulated annual compensation, and continues beyond the year, that he does so on the same terms. Adams v. Fitzpatrick, 125 N. Y. 124; 34 St. Rep. 859; Douglass v. Merchants' Ins. Co., 118 N. Y. 484; 29 St. Rep. 944; Huntingdon v. Claffin, 38 N. Y. 182; Vail v. Manufacturing Co., 32 Barb. 564. As there is no evidence whatever in opposition to this presumption, for the purposes of the present consideration it must be assumed that on the 1st day of May, 1892, the plaintiff entered upon a new contract of hiring with Bliss for a period of one year at the same salary. June 1, 1892, Bliss and this defendant, Charles E. Fisher, formed a partnership, under the firm name of Charles E. Fisher & Co.; and thereafter, and until the death of Bliss, during the latter part of May, 1893, they carried on business of the same character and at the same place as Bliss had done prior to the formation of the partnership. The plaintiff continued to do the same work after the partnership was formed as he had done before, receiving compensation weekly at the same rate until the 12th day of November, 1892, when he was discharged without cause; the position of the defendant being that the hiring was from week to week, and could be terminated at any time. The evidence requires us to say, as we have already said, that, at the time of the formation of the partnership, the plaintiff was in the employ of Bliss under a contract which had about eleven months more of life, and the firm could only become liable thereon by an assumption of the contract While there is no evidence that this partnership contract was in terms assumed by the partnership, there is evidence, we think, which would have permitted the jury to find that the partnership assumed all the contracts and obligations growing out of the business in which Bliss was engaged.

The respondent urges that, if the position which we have taken be correct, nevertheless the judgment dismissing the complaint should be affirmed, because there existed another ground which must necessarily prevent a recovery. He insists that when the plaintiff made his contract with Bliss, in May, 1891, the plaintiff agreed to bring to Bliss certain customers of his own, and that he subsequently did so, but after his discharge, he endeavored to and did take certain of the customers away from defendant’s firm. Thus, it is contended he violated the contract which he is now insisting in this action is valid and enforceable as against his employer. It was a duty which plaintiff owed to the defendant to accept employment of the same general character, if opportunity should offer, to the end that it should go in reduction of the amount of his salary for the unexpired term. This the plaintiff attempted to do, and, while he did not secure a position with a salary, he did find an opportunity to do work of the same general character as that in which he had been previously engaged, but on commission. Among the customers he obtained was one, and only one, who was doing business with his employers at the time of his discharge. Of course, it is not pretended, in the absence of a special contract, with reference to his former customers, constituting part of the contract of hiring, that he would not be permitted to do their business after his discharge, or even soliciting their business. What is claimed is that it was a part of the agreement when he was employed that Bliss should have the business of plaintiff’s customers as far as he could control them, and therefore to secure the patronage of such a customer during the contract period would constitute a breach on the part of the plaintiff, which would deny recovery to him. One difficulty with defendant’s position is that it assumes it to be established as a part of the original contract of employment that the plaintiff agreed that defendant should have the patronage of his customers so far as he could control them, during the term of employment. The evidence upon this point is not very satisfactory, apparently for the reason that the parties did not seem to appreciate at the time that it was a matter of any moment. Possibly, had the question been submitted to them, the jury might have found the fact to be that the plaintiff had contracted with Bliss that he should have the patronage of his customers during the term of employment. But, on the other hand, they might have found, as the proper inference of fact to be drawn from all the evidence on the subject, that the plaintiff tried to impress Bliss as to the value of his services, by telling him about the number of customers whose confidence he had secured by upright dealings. Upon such a finding as the last there could not be predicated a conclusion of law that the plaintiff had violated his contract by accepting or even soliciting the business of such a customer. Men are frequently employed as clerks in stores because they are known to have a large number of customers who bestow their patronage where such clerks'are employed; and if the clerk be discharged during the term of his employment, and goes to another store, of the same character, to take employment, as the law says he must if he has a chance, he does not commit a breach of contract because his friends and personal customers follow him from the old place of employment to the new, whether at his suggestion or otherwise. To accomplish such a result, it must at least appear that it was embodied in the contract of employment that, during the term of service contracted for, the employer should have the patronage of all the customers which the employe could personally control. Whether the one or the other finding of fact should be made are questions for the consideration of the jury.

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

All concur.


author: Follett, J.

text:
    New York Life Insurance and Trust Company, as Trustee, etc., Resp’t, v. Margaret S. Ives et al., Impleaded, etc., Def’ts, Cornelia D. Chauvet et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Pleadings — Between defendants.
    Section 521 of the Code does not authorize defendants to litigate, as between themselves independent cross demands, not connected with the cause of action set forth in the complaint.
    Appeal from an order, striking out portions of the answer as irrelevant and redundant.

      Abram Kling, for app’lts; Charles F. MacLean, for resp’t.
   Follett, J.

— The fund which the plaintiff holds as trustee, and for the distribution of which this action is brought, did not arise out of the agreement executed J une 16, 1892, but from the rents of real estate received before the will of Francis W. Lasak was set aside. Undoubtedly, any of the defendants may allege that he or she is entitled to all or some share of the apparent interest of a codefendant in the fund by reason of having acquired title thereto or a lien thereon by agreement. But that is not what the appellants seek to do. They set up in their answer that by a contract dated June 16, 1892, Margaret S. Ives, a codefendant, agreed to pay them $180,000, in consideration of their having assigned to her their interest in the estate. This is an independent cause of action, having no relation to the fund which the plaintiff holds in its hands. Had the fund in the suit arisen out of the contract of June 16th, a different question would have been presented. Section 521 of the Code of Civil Procedure does not authorize defendants to litigate, as between themselves, independent cross demands, not connected with the cause of action set forth in the complaint. Smith v. Hilton, 50 Hun, 236; 19 St Rep. 340.

The order should be affirmed, with $10 costs and disbursements.

All concur.