text:
    Leonard J. Silver, Resp’t, v. Benjamin Sire, App’lt.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    Appeal—Conflicting evidence.
    Where the testimony is very conflicting and confused, the decision of the trial court will not be disturbed on appeal.
    Appeal from a judgment entered in favor of plaintiff.
    Albert I. Sire, for app’lt;
    Julius Silverman, for resp’t.
   BOOKSTAVER, J.

Action for damages for the conversion of a safe. Plaintiff bought a safe from Sire & Reisfield, which of a safe. Plaintiff bought a safe from Sire & Reisfield, which was standing in a store at the northeast corner of Thirty-ninth April 1, 1895. When they moved out they left the safe there, and plaintiff claims they afterward sold it to him. A Mr. Stein was in charge of the empty store,, and refused to let the safe go, saying that Mr. Sire so directed him. The defendant denied that he owned the store or the building, or that he had authorized any one to withhold a safe there from the plaintiff, and testified that a Mr. Fountain owned the building. He would not say, however, that he had not brought a suit against Sire and his partner for the rent. . His memory on this important point is very obscure. Stein testified that a man named ITazlett, agent for Fountain, had brought a suit against Sire & Reisfeld, presumably for the rent of the store. Hazlett’s office was with Sire, and Sire’s employes were accustomed to obey him. The testimony is very conflicting and confused. This confusion could have been cleared by the production of witnesses within reach. There was, however, evidence sufficient to support the finding of the justice, who had all the parties before him, and could best determine where the truth lay.

The judgment will therefore be affirmed, with costs.


source: Caselaw Access Project

author: HATCH, J. TITUS, C. J.

license: Public Domain

text:
    People ex rel. John Doody, App’lt. v. Charles F. Bishop et al. Resp’ts.

      Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Municipal corporation—Police—Removal.
    Where a person is removed from a lower grade of employment, which he is eompetent to perform, into a higher, where more skill and a higher degree of intelligence are required, his failure or dereliction of duty in the higher grade cannot be made the basis upon which to remove him from the lower service.
    3. Same.
    The fact that such party attempts the performance of the duty assigned without objection, does not change the condition.
    Certiorari to review proceedings by the board of police of the city of Buffalo, relative to the removal of relator from his office of doorman of police of the city of Buffalo.
    Frederick Haller, for relator;
    Charles L. Feldman, for def'ts.
   HATCH, J.

The relator was regularly appointed a doorman upon the police force of the city of Buffalo October 21,1889, and had continued in such office at various stations of the police force until the 25th day of August, 1894, when he was assigned to duty at police headquarters, where he performed duties, in part, at least, in all respects similar to those he had theretofore performed. While performing duey at headquarters, he was assigned by one Illig, the chief operator, in charge of the police telegraph and patrol signal system, to duty in that department. This assignment was made upon request of one Tibbits, an operator therein, and seems to have been made for the purpose of instructing the relator in the management and use of the telegraph instruments and switchboard used in the department. This work was more difficult of performance, and there was more of it than attached to the duties of doorman at a station house, and relator was not proficicient therein. While so employed he neglected, as the evidence tends to establish, to note certain calls from the various boxes of the system, and particularly neglected to notify the proper person of a patrol wagon call for the space of twelve minutes, and then only when the call was repeated. For this dereliction of duty written charges were preferred by Illig to the board of police, with precise specifications, charging the aforesaid dereliction of duty. A trial was had, and the board found the charges, sustained by the evidence, and dismissed the relator from the Buffalo city police department. The office to which the relator was appointed has been recognized in the various charters of the city of Buffalo for many years, and its duties have been specifically defined in the charter, and rules adopted thereunder for some years, and has been continued under the last revised charter of the city. By section 187 of this charter the constitution of the police force is defined, and the status of the office -of doorman is therein determined. Section 194 authorizes the adoption of rules for the government and discipline of the force, prescribing their duties, providing for appointments and removals;' and such rules are given the same force and effect’as though they formed part of the enactment. Under this provision, rules were adopted defining the duties of doorman, and assigning his rank in the department. ¡Nothing in section 187 determines the status of those persons who are denominated in the rules as attached to the police - telegraph and patrol signal system. It is true that therein it is stated that “the term ‘doorman’ in this act covers all members of the force who were appointed under the name of operators.” But this provision does not determine that the persons employed as operators in the telegraph and patrol signal system fall under the designation of doormen. The clause evidently refers to some persons who had been appointed as operators at some time prior thereto, and the office of doorman contemplates that they shall be operators. But the section'does not disclose that the persons connected with the patrol and signal system were appointed as operators or doormen, nor is there any provision for their appointment except the general power contained in the section to appoint, “in addition to the police force,” clerks and employes necessary for the proper working and management of the department; and those persons do not seem to have a defined status upon the police force, but are in addition thereto, and find no place in the defined rank of the force. The rules defining the duties of a doorman do not embrace the duties assigned to the employes of the patrol and signal system. Those duties are made the subject of a distinct and separate rule under the title of the “Police Telegraph Signal system.” That the board of police recognized this fact is disclosed by the examination of Illig by Commissioner Rupp:

Q. Is the work there harder than being a doorman in a station house? A. Yes, sir; more work attached to it. Q. Any ordinary operator should learn that duty in a week? A. Yes, sir. He may make a mistake once in a while, but not every day. Q. You would consider a man that could not learn that business in a week, after he had heen a doorman, was not a competent person to have in the department? Yes, sir.

The charge is néglect of duty as a doorman, yet the specification is of neglect “while on duty in the patrol signal department.” The board of police appoint the members of the police force by virtue of the charter, and by the rules they are required to inform the superintendent of police without delay of their action, and he makes all assignments to duty. In the case before us it appears from the return that the relator was assigned to duty at headquarters, by the superintendent, and it does not appear that any further assignment was made by him. The step which brought relator in contact with the department where his omission of duty occurred was qrdered by Illig, upon the request of Tibbits. We are referred to no rule or authority which vested Illig with any authority over doormen, or which authorized him to assign relator to duty at the switch hoard in the patrol system. There is no proof to establish that relator was guilty of any fault in the performance of his duty as doorman either at headquarters or elsewhere. We are therefore presented "with a case where relator had a fixed status as doorman of police, and performed his duties properly. Without authority he was assigned to another department-, other and different duties were imposed upon him, which he failed to perform, and such failure is made the basis of charges to remove him from his office, wherein he was guilty of no dereliction of duty. We are of opinion that this may not be done. The qualifications which made him a competent doorman were evidently not sufficient to make him a competent operator of the telegraph and patrol system. But to the latter position he was not appointed. It would be a strange system which could remove a personfrom a lower grade of employment, which he was competent to perform, into a higher, where more skill and a higher degree of intelligence were required, and then make his failure or dereliction of duty in the higher grade the basis upon which to remove him from the lower service. His failure to quickly learn the more difficult duties of the other station cannot be made the basis of removal from an office whose duties, so far as appears, he properly performed. Hor does the fact that the relator attempted performance of the duty assigned without objection change the condition. He was placed there for instruction in the first instance, and may have been willing to be taught. The trougle seems to-be that either through lack of capacity, intention, or stupidity he did not learn fast enough. ' But there is not sufficient evidence to show that he intended at any time to relinquish his office of doorman, and neither the board nor the superintendent of police, by any act, prior to the trial, evidenced any intention that he should. We conclude, therefore, that no neglect of duty as doorman appears, and that neglect in another branch of employment, to which he was appointed, under the circumstances of this case, cannot be made the basis of removal from the position to which he was appointed. The order will therefore be that the proceedings be reversed, and set aside, and that the board of police reinstate relator in his office of doorman. Oosts awarded to the relator.

WHITE, J., concurs.

TITUS, C. J.

(dissenting).-The writ of certiorari in this case issued to the defendants, constituting the board of police of the city of Buffalo, requires them to make return of all and singular the evidence the proceedings had on the trial of the relator for neglect of duty while a member of the police force. It appears from the return that the relator was appointed doorman in 1889. His duties were to receive and send messages from the station house where he was stationed, and to use the telephone in connection with the police department work. In a general way he had charge of the electric appliances at his station, and in the absence of his superiors had charge of the station. He was required to be proficient in telegraphy, and, from the nature of his duties, he must be familiar with such electric appliances as were in use by the department. He was assigned to different stations, as the service required, and on the 25th day of August was assigned to duty at headquarters. It does not appear that his duties there were different in character, or repuired more skill in the performance of them, than while on duty at the station house. He was required to use the- telegraph and telephone in receiving reports from officers and station houses, .and to make and keep a record of them. It was his duty to O. K. slips, containing the reports of patrolmen from the different patrol boxes. He is charged with neglect of duty in failing, on December 4,1894, “to answer twenty officers’ report calls received by him, from officers on post duty,” and in failing “to obtain the names of twenty officers who sent in officers’ report calls.” It is further charged that he received “a wagon call from box 5 at 3:28 o’clock p. m., and neglected to transfer said call to No 1 patrol wagon station until twelve minutes later,” when he should have immediately transmitted the message. It does not seem to be disputed that the board of police had sufficient evidence to warrant them in finding the charges sustained, but it is claimed that he was not able, from want of experience in the performance of the duties required of him, to meet the requirements of his changed position; and that the duty of a doorman, with the position he held, did not require of him that degree of skill necessary to perform the more difficult task to which he was assigned at headquarters; and hence it is claimed, he cannot be removed for insufficient knowledge and skill in those duties to which he was not originally appointed, and which, in the position of doorman, he would not have been required to perform. It seems to be unnecessary in disposing of this case to pass upon this question. Whether the board of police can appoint a man to a position requiring little or no skill in which he performs well all duties required of him by the position, and then assign him to a position requiring much greater skill, or a different grade of education and training, it is not necessary to decide; but there seems to be reason in the position that a man fit and qualified for a particular duty to which he is appointed should not be required to perform other duties to which he was not appointed, and for which he might not be qualified, and thus subject him to removal for failure through lack of training or skill in their performance; It is by no means clear that he was not sufficiently qualified and skilled in his duties to perform them. The nature of his work was the same as he had been doing at the station houses, and it cannot be seen how a man skilled in the use of the telegraph and telephone, as the relator must have been, should fail to perform the duties assigned him at headquarters. There is no evidence that it required any different knowledge or skill. According to his own testimony, he - understood the system of receiving calls and recording them, and was familiar with the patrol signal system. His only claim is that he is bothered in getting the names; that, if he had time to get the names, he could do the work as well as any man there. He does not appear to have made any complaint to the superintendent that he could not keep up with the work, or that he required more practice before he was equal to the duties of the position. He continued voluntarily and of his own accord in a position with the duties of which he was entirely familiar, and yet he claims he could not keep up with the work. The sufficiency of the relator’s excuse for failure to perform his duty rested wholly in the sound discretion of the board of police. They had authority and jurisdiction to try the relator. Laws 1891, c. 105, § 192. I do not think their determination reviewable in this proceeding. If the board was not satisfied with his excuse for failure to properly perform his duties, it cannot be said they should have been. He may have been careless when care was required. He may have been animated by some motive to have the work neglected, that others might be charged with his neglect. There is some evidence of ill feeling between him and his associate employes, and the whole question was for the board to pass upon and determine, and not for the court on review. People v. Board of Police, 39 N. Y. 506; People ex rel. Masterton v. French, 110 id. 494; 18 St. Rep. 231; People v. Board of Fire Comrs., 82 N. Y. 358. The weight of the relator’s evidence, its force and tendency, can be much more accurately ascertained by the board than by the court. Its members are familiar with all of the circumstances surrounding the case. They are familiar with the duties of the position which the relator occupied; they knew his capacity and fitness to efficiently perform those duties; and, unless they have stepped outside their authority, and acted without evidence, their conclusion will not be disturbed. People v. French, 7 St. Rep. 253; People ex rel. Taylor v. McLean, 38 id. 896. From what has been said it follows that the proceedings and decision of the defendants should be affirmed, but without costs.


author: TITUS, C. J.

text:
    George B. Ferguson, by Guardian, etc., Resp’t, v. Marshall N. Smith et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895

    1. Master and servant—Instruction.
    It is the duty of the master, before he puts his servant of immature years, in charge of dangerous machinery, with which he is unacquainted, to instruct him how to operate it and to give him such instruction as will cause him to understand .fully and appreciate the difficulties of his position and the necessity of the exercise of care and caution.
    8. Same—Risk.
    When the servant is in possession of such information, he assumes the

      risk of his employment and, if he meets with an accident, he cannot recover.
    3. Same.
    If the danger is open and apparent, even though the servant is inexperienced, he cannot recover for an ihjury sustained in sueh apparent danger.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Willis H. Meads, for app’lts;
    Harry D. Williams, for resp’t.
   TITUS, C. J.

The defendants are owners of and operate a planing mill in this city, having a variety of such machines and appliances as are used in the business commonly carried on in such.places. The plaintiff, a boy fifteen years old, was given employment in the mill. He was first set to pulling boards off of the planer, and after a day and a half at this work, he was sent upstairs to work on a sandpaper machine. After working on this-machine for about ten days, the defendants’ foreman, wanting some wedges cut, directed another employe, who was perfectly familiar with the use of the machine, to show the plaintiff how to use it. The machine was an ordinary buzz saw, about ten inches in diameter, so adjusted under a table that it could-be raised or lowered. The saw ran in a groove, and projected just far enough above the bed of the table to cut through an inch board, of which the wedges were made. An appliance called a “jack” was provided for the purpose of pushing the board onto the saw in the process of cutting- The boy says the man Ernst took him to the machine, and told Mm what he had to do to cut the wedges. He cut two or three, and then told the boy to try. The boy cut two or three wedges, and his instructor told him that was all right, and turned around and went off, leaving the boy alone. He then attempted to cut another, and the board and jack commenced to bob up and down, and the next tMng he knew his fingers were cut off. He does not know, or at least does not tell more definitely, how the accident occurred. The saw was in plain sight. He knew what it was for, and that it was dangerous. Ho other instruction was given him. He had never worked around a machine before he went into the defendants’ employ, and had no previous knowledge of how the machine was operated. The defendants now claim that the plaintiff should have been nonsuited, on the ground that the master had discharged the duty which he owed the plaintiff to properly instruct him how to operate the machine. "This presents the only question in the ease, as the defendants’ counsel makes no point that the error was committed by the trial judge in his rulings on the admission of evidence, or in his charge tó the jury, or in his refusal to charge as requested by the defendants’ counsel. The questions submitted to the jury were “whether or not the instruction given to the boy in the use of the machine was such as to fairly and adequately apprise the plaintiff of the nature of the operation of the machine, and of the dangers involved in it,” and whether the plaintiff was himself guilty of negligence after knowing how to operate the machine. The principles of law involved in this case are elementary, and are not seriously controverted. It is the duty of the .master, before he puts his servant, of immature years, in charge of dangerous machinery, with which he is unacquainted, to instruct him how to operate it, and to give him such instruction as will cause him to fully understand and appreciate the difficulties of his position, and of the necessity for the exercise of care and caution (Hickey v. Taaffe, 105 N. Y. 35; 6 St. Rep. 426), and when he is in possession of such information he assumes the risks of his employment, and, if he meets with an accident, he cannot recover (DeGrraff v. Railroad Co., 76 N. Y. 125). The defendants’ negligence, if any, is in not giving the plaintiff that degree of instruction necessary to his full understanding of the danger attending the operation of the machine, and how it could be operated so as to avoid such danger. Brennan v. Gordon, 118 N. Y. 489; 29 St. Rep. 829. The plaintiff’s evidence shows that the instruction given the boy was of the most superficial character, and did not point out any of the dangers which were incident to the operation of the machine. The proof is that the saw would bind and stick in wet and knotty lumber, and would jump up and down, the way it did in this case; yet the plaintiff was entirely ignorant of these facts. If the danger was open and apparent, even though the plaintiff was inexperienced, he could not recover for an injury from such apparent danger; but we do not think the facts in this case present that question. The injury was received from the board bobbing up and throwing the plaintiff’s hand onto the saw, because there is no evidence from which the conclusion can be reached that the plaintiff carelessly put his hand onto the saw. It seems to us that the court properly submitted the question of the defendants’ negligence in not not giving the boy proper instruction to the jury, and their finding, being supported by evidence, should not be disturbed.

The judgment and order appealed from should be affirmed, with costs.


text:
    Kate R. Martus, as Administratrix, etc., App’lt, v. Delaware, Lackawanna and Western Railroad Company, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Negligence—Contributory.
    A person, in approaching a railroad crossing, is required to stop and look and listen and use his faculties to determine whether or not it is safe to cross.
    2. Same.
    The motorman on a street car, on approaching a railroad crossing, is hound himself,irrespective of any arrangement which he has with the conductor, to stop and determine whether the train is or is not approaching.

      Motion for a new trial on exceptions, ordered to be heard in the first instance at general term»
    George W. Cothran, for pl’ff;
    Messrs. Rogers and Locke & Milburn, for def’t.
   TITUS, C. J.

The exceptions taken on the trial of this cause were sent to the general term in the first instance, an entry of judgment being stayed in the meantime. The action was brought to recover damages for the negligent killing of the plaintiff’s intestate. The deceased w;as a motorman in charge of a Seneca street trolley car, and was injured by a locomotive engine at the defendant’s crossing of Seneca street, in this city, on May 26, 1893, and died shortly after. At the time of the injury the deceased was going east on Seneca stret, with his car, and as he approached the crossing of the defendant’s track he came to a stop at about twenty-five feet from the west-bound track. The conductor got off and went forward, and the deceased, with his car, followed along after the conductor. It appears that the conductor and the deceased had an arrangement by which the conductor was to go ahead and the car was to follow, unless he was signaled by the conductor to stop. The conductor did not signal for him to stop, but motioned with his hand for him to come on. As the car got .on the west-bound track the conductor looked around, and saw the defendant’s train approaching on the east-bound track, but so close to him that he had no time to signal the deceased to stop, but jumped off the track on which the train was approaching and allowed the car to run onto the track, when it was struck by the locomotive and demolished, and the deceased and some of the passengers were injured. It appears that when a person approaches the defendant’s tracks from the west, at a point twenty-two feet from the crossing an approaching train from the west can be seen for more than half a mile. The plaintiff was non-suited on the trial, on the ground that the deceased was guilty of contributory negligence. It is claimed on this hearing that the defendant was guilty of negligence, and that the plaintiff’s contributory negligence should have been left to the jfiry. It may be conceded, in the view which is taken of the facts in this case, that the defendant was guilty of negligence; but we think the disposition of the case at the trial term was proper, on the ground that the plaintiff, by his own neglect, contributed to the accident. The principles of law applicable to this case have been so long and well settled that they may be regarded as elementary, and a simple statement of them is sufficient, and requires no citation of the numerous authorities and precedents which have arisen within the last few years. A person, in approaching a railroad crossing, is required to stop and look and listen, and use his faculties to determine whether or not it is safe to cross. It appears from the evidence that the deceased, before crossing, did not look to the right and left, but it is manifest that either the witnesses who speak are mistaken, or the deceased recklessly ran into the danger, because it was well known to the conductor of the car, and probably to the deceased, that the train which caused the injury was due at about this time; and it became his duty, if he saw a train approaching, before crossing, to determine whether it was safe or not. It is suggested by the plaintiff’s counsel that it was in the nighttime, and it would be quite difficult to tell whether the train on the track, if the motorman saw it, was coming towards him or standing still. H that is so, the deceased should have waited to ascertain, and, if he passed on in full view of the train,—which he did do,—not waiting to see whether the danger was approaching, he took his .own risk of being run over, and did not exercise that reasonable care to protect himself which the law requires, and was consequently guilty of contributory negligence. It does not seem to us that there is any ground upon which the plaintiff’s case could have been submitted to the jury. If the deceased relied upon the conductor to signal to him of the approaching train, and the conductor was guilty of negligence, then we think that negligence must be attributed to the deceased as well. He was bound himself, irrespective of any arrangement which he had with the conductor, to stop and determine whether the train was approaching or not. If he failed to do that, or if he saw it approaching, and neglected to stop his car to wait for it to pass, we think that in either case he was guilty of contributory negligence, and cannot recover.

We think, therefore, that the exceptions should be overruled, and judgment ordered in favor of the defendants, with costs.


text:
    Christopher H. Holstein, App’lt, v. William H. Clark, Resp't.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Appeal—Evidence.
    The finding of the court upon a question should not he disturbed, in the absence of such a preponderance of evidence as would lead the appellate court, as a matter of law, to reverse the judgment.
    Appeal from a judgment in favor of plaintiff.
    Alfred B. Osgoodby, for app’lt;
    Wood & Gibbons, for resp’t.
   TITUS, C. J.

This action was brought in the municipal court for fraud in the purchase of a bill of groceries from the plaintiff by the defendant. The purchase of the groceries is admitted, but the fraud is denied. Hpon that question the court below found in favor of the defendant. While there is evidence which would have justified a finding of this question against the defendant, we think that the court, having all of the witnesses before it, could determine from their appearance upon the stand, and the general character of their conduct and manner of testifying, which were the more entitled to be believed; and the finding upon this question should not be disturbed, in the absence of such a preponderance of evidence as would lead us, as a matter of law, to reverse the judg-, ment. That condition does not exist in this case, and we think the judgment of the court below should be affirmed with costs.

All concur.


author: HATCH, J.

text:
    Augustino Cristiano, by Guardian, etc., App’lt, v. Annie E. Millers et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Negligence—Dangerous premises.
    There can he no recovery for injuries caused by defective premises, where the injured person is merely a licensee.
    Motion for a new trial upon a case and exceptions, ordered to be heard at the general term in the first instance.
    Charles Oishei, for pl’ff;
    Tracy C. Becker, for def’ts.
   HATCH, J.

The record does not disclose what disposition was made of defendants’ motion for a nonsuit, and it is not clear that any exception was taken to any ruling. Brief of defendants’ counsel states that the court granted a nonsuit, and the parties have appeared in court, and argued the motion upon that supposition, without objection. We conclude, therefore, to entertain the motion. The record discloses that plaintiff, an infant between eight and nine years of age, in company with his sister, visited defendants’ brewery for the purpose of obtaining a load of “brewery slops.” The usual place of securing the load was at a box situated in the brewery yard adjoining the structure. Near the box was a passageway or tunnel under the brewery building, which was used by the defendants and their servants in prosecuting the business. It was not necessary, in order to obtain the load, to enter the tunnel, and it had never been used in connection therewith. Within the tunnel, situated about twenty-five feet from the enterance, was a hole connected with a subterranean passage, through which was discharged hot water used in the brewery. This hole was covered with an iron grating. On the day in question the sister drove first to the office of the brewery, made inquiry for slops, and was informed that there were none that day.. Notwithstanding this information, she drove to the rear of the brewery, where the slop box was situated, made inquiry there, and was again informed that there were none. At this time plaintiff alighted from the wagon, to answer a call of nature, and entered the tunnel, passed along to the grating, and stepped upon, it. It tipped and let him in; and his lower limbs were severely scalded. We are unable to find, upon these facts, any ground upon which to charge defendants with liability. No permission was given by defendants to use the passageway. It was not necessary for plaintiff to use it for any of the purposes connected with his visit to the brewery, or in getting slops. There was no closet or urinal there, and it was not used for such purposes. If he had an implied right to enter, sufficient to exclude the entry from being trespass, his right was no higher than that of ■a mere license; and he accepted the passage in the condition it then was, and took upon himself whatever of risk there was in its use. This rule is recognized in the cases cited by plaintiff upon this motion: Nicholson v. Railway Co., 41 N. Y. 525; Larmore v. Iron Co., 101 id. 391; Barry v. Railroad Co., 92 id. 289; Beck v. Carter, 68 id. 283,—and is reiterated in Cusick v. Adams, 115 N. Y. 55; 23 St. Rep. 548; Sterger v. Van Sicklen, 132 N. Y. 505; 44 St. Rep. 863. Where there is an invitation to enter, either express or implied, or the person is enticed, induced, or allured to enter upon the premises, the rule is different (an illustration is found in Walsh v. Railroad Co., 22 N. Y. Supp. 441, and cases cited), or where an affirmative act increases the danger, and inflicts injury. Corrigan v. Refining Co., 98 Mass. 577. These latter eases are without application, for here existed none of these conditions. Liability, can only be predicated upon the violation of some legal duty which defendants owed to plaintiff, within the authority of the cases just cited; and, upon present facts, defendants owe plaintinff no duty, in consequence of which no liability can attach.

The exceptions should be overruled, and the motion denied.


text:
    Josefa Zrskowski, Respt’t, v. John Mach, as President, etc., App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Pleading—Joinder of causes—Tort and contract.
    A complaint, which alleges a contract to pay plaintiff, in case of the death of her husband, $750, as insurance on his life, together with necessary doctor’s fees and funeral expenses, the failure and refusal to make any of such payments, the consequent inability of plaintiff to arrange for the funeral and burial of insured at public expense, to plaintiff’s disgrace and damage in the sum of $500, with the demand for §750 as insurance and $500 as damages for breach of contract, does not unite a cause of action in tort with one on contract.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.
    Harring & Smith, for pl’ff;
    John W. Fisher, for def’t.
   TITUS, C. J.

The defendant demurs to the complaint herein on the ground that two causes of action have been improperly united. The complaint alleges that the defendant is the president of an unincorporated association, of which the plaintiff’s husband, at the time of his death, was a member in good standing; that in consideration of premiums paid by Mm the association agreed to pay to the plaintiff, Ms widow, within sixty days after notice of his death, the sum of $750, as insurance on his life, together with the necessary doctor’s fees and funeral expenses (said fees and expenses to be paid, and said funeral to be arranged for, immediately after death, by the said association); that the' notice of Ms death was duly given more than sixty days before the commencement of tMs action; and that the defendant neglects or refuses to pay the same. The complaint then proceeds, without separately numbering the causes of action, with: “The plaintiff is a poor woman, with limited means, and because of the failure of said association to arrange for and provide^ and because said association wholly neglected to and refused to arrange for and provide, after said death, the necessary means for the burial, said plaintiff’s husband was buried by the proper authorities at public expense, greatly to the sorrow and affliction of this plaintiff; that plaintiff, by reason of the said failure and refusal of said association to arrange for and provide suitable and proper burial for her husband’s body, as by his said membership he became entitled to, and because of having thereby subjected plaintiff to the stigma and disgrace of having said body buried in an unknown grave in the potter’s field, at public expense, has suffered damage in the sum of $500,” and demands judgment for $750 as insurance, and $500 as damages for the breach of the contract.

The plaintiff evidently intends to allege two causes of action, both arising from a breach of the contract of insurance. The first is for the liquidated sum, being the amount agreed to be paid by the defendant on the death of the plaintiff’s husband, and the other is for such a sum as the jury, in its discretion, upon the trial, may see fit to award. Heither cause of action is in tort, but both arise out of the same contract, and in determining this question the complaint must be taken as true. Whether the plaintiff is entitled to the damages complained of by her, measured by the stigma and disgrace she has suffered by the neglect of the defendant in not arranging to bury her husband in some sffltable cemetery, is not necessary to determine here, because the defendant’s demurrer raises the simple question that the cause of action cannot be united with the cause of action for the amount of insurance mentioned in the contract. If the cause of action lastly set out is in tort, the demurrer would have to be sustained, because of the well-known rule of law that causes of action on contract and in tort cannot be united in the same complaint. Code, § 484; Goldberg v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 id. 173. But because they are not separately stated and numbered does not render them demurrable. Townsend v. Coon, 7 Civ. Proc. Rep. 56; Henderson v. Jackson, 40 How. Prac. 168; Nichols v. Drew, 94 N. Y. 22. The only question here is, can these two causes of action be joined? We do not think the second cause of action is in tort. Ho wrongful act is alleged, except the failure of the defendant to carry out the provisions of the contract; and if a cause of action exists in favor of the plaintiff, for such failure, it arises solely from a breach of contract of insurance. Causes of action may be united, arising on contract, where all of the parties are interested in the different causes of action joined. Code, § 484. And by the same section claims arising out of the same transactions, or connected with the same subject of action, may be united. The facts do not present a case where actions on several contracts are sought to be united, but where two causes of action for damages arise from the breach of one contract. We think it falls strictly under the first subdivision of the section, which provides, “The plaintiff may unite in the same complaint two or more causes of action, * * * where they are brought to recover, first, upon a contract expressed or implied.” We think the defendant’s counsel is in error when he says the second cause of action is upon a tort. No tort is set out, as entitling her to damages. She alleges that she- has sustained disgrace, and been stigmatized among her neighbors and friends, by reason of the failure of the defendant to carry out and fulfill his contract.

The demurrer must be overruled, with costs, with leave to the' defendant to answer within twenty days, upon payment of costs.

AJI concur.


author: FREEDMAN, J.

text:
    Francis De Canio, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Municipal corporation—Office—Abandonment.
    Neglect of duty by an officer, absence from the place where the duties are to be performed, nonuser of powers or abandonment, are not modes of vacating an office, but, if unjustifiable, are grounds for removing him from office by the proper authority.

      2. Same.
    But, if abandonment is to be inferred conclusively from nonuser or neglect of duties, so as to amount in itself to an absolute vacation, without express renunciation, of the office once lawfully held by the party, it can only be when the nonuser or neglect is not only total or complete, but of such continuance or under circumstances so clearly indicating absolute relinquishment, as to preclude all future question of the facts.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Edward Browne, for pl’ff;
    Francis M. Scott (Edward H. Hawke, Jr., and F. E. V. Dunn, of counsel), for def’t.
   FREEDMAN, J.

The trial of the issues in this ease resulted in the direction of a verdict for the plaintiff for $2,731.91. The defendants excepted generally to the direction of the verdict, and especially to the amount of the verdict; and the 'court ordered defendants’ exceptions to he heard at the general term in the first instance, and that the entry of judgment upon the verdict be suspended in the meantime. Although the counsel for the defendants specially excepted to the amount of the verdict, he failed to point out any error of computation, and thus the whole labor of inquir-: ing into the correctness of the amount has been cast upon the court. The plaintiff sues to recover for salary alleged to be due to him as an inspector of masonry on the new aqueduct, from June 8, 1887, to July 8, 1887, and from May 1, 1888, to December 18, 1889, when he was notified that he had been dismissed from the service. The answer admits the appointment of "the plaintiff as such inspector on the 8th day of June, 1887, to take effect July 8, 1887. At the trial .the plaintiff withdrew the claim for the month last mentioned, and admitted that he had resigned as inspector of masonry on October 11, 1889, at which time he was appointed an excise inspector. The plaintiff, therefore, in the aspect of the case most favorable "to him, could recover only arrears of salary from May 1, 1888, to October 11, 1889, at the rate of $120 per month, amounting altogether to $2,080. The record shows no facts upon which the plaintiff can claim interest, except the fact that on December 9, 1891, he presented his claim to the comptroller of the city of Mew York for adjustment, and that the said comptroller failed "to make adjustment and payment thereof. Under the circumstances of this case, therefore, the recovery of the plaintiff on the day of the trial, viz. May 21, 1894, could not exceed the sum of $2,080, with interest thereon for two years, five months, and thirteen days, amounting to $306.06, making a total of $2,386.06. The verdict, as directed, was for $2,723.91 and consequently excessive; but insmuch as a reduction to the proper amount may be ordered, in case the plaintiff is otherwise entitled to recover a specific sum, it is necessary to consider the other questions in the case.

The defense relied upon is that the plaintiff abandoned his office. The record shows that, at the close of the testimony given by both parties, the court called upon defendants’ counsel to state what defense there was; that defendants’ counsel answered that the plaintiff had abandoned his employment and left; that the court then inquired what the evidence was on which counsel relied; and that said counsel thereupon stated as follows:

“Mr. Hawke: The fatft that he left the work the 1st of April, claiming that he was sick. During the month of April he filed a doctor’s certificate for that month. He absented himself without explanation, or without a doctor’s"certificate, from the 1st of May until the 13th of July, 1889, on which day he came to the division engineer and asked to he put to work: and it was not until that time, after several months of absence without an explanation, that he reported to the division enginer. We claim that is an abandonment.”

No proof had been given of any statute or rule which required a doctor’s certificate, and the date, given as the 13 th day of July, 1889., was a mistake. It should have been the 13tli day of July, 1888. Moreover, it was shown that the salary of the plaintiff for the month of April, 1888, had been paid. The case, therefore, as it appeared before the trial judge, simply presented the question whether the absence of the plaintiff from duty between the 1st day of May, 1888, and the 13th day of July, 1888, without an explanation at the time, constituted an abandonment of the office. It clearly did not as a matter of law; for under the statutes of this state neglect of duty by an officer, absence from the place where the duties are to be performed, nohuser of power, or abandonment are not modes of vacating an office, but, if unjustifiable, are grounds for removing him from office by the proper authority. But even if abandonment might be inferred conclusively from nonuser or neglect of duties, so as to amount in itself to an absolute vacation, without express reunciation, of the office once lawfully held by the party, it could not be when the nonuser or neglect is not only total or complete, but of such continuance, or under circumstances so clearly indicating absolute relinquishment,, as to preclude all future question of the facts.

In the case at bar no such inference of abandonment could fairly be drawn, either by the trial judge or by the jury, because additional facts showed that on May 28, 1888, the plaintiff, on the advice of his physician, applied for leave of absence, without pay, to commence June 1, 1888, which application was denied by the aqueduct commissioners; that he then reported for duty, at least on July 13th, 1888, if not before, and announced his readiness to go to work, and was told by the division engineer that there was no place for him; that on his second visit he was told to see the chief engineer; that he saw the chief engineer, who told him to come baclc'again and that he would see; that he continued to report to the chief engineer repeatedly thereafter, and held himself in readiness to obey his orders, but was not assigned to duty, and that it was not until December 24, 1889, that he received notice that he was dismissed from the service. In view of these facts, and the chief engineer not having been called in contradiction, nor his nonproduction explained or accounted for, the defense of abandonment wholly failed. The plaintiff was not even suspended, as the fact was in Gregory v. Mayor, 113 N. Y. 416; 22 St. Rep. 703. Nor was there any agreement not to claim salary during nonperformance of duty, as the. fact was in Emmitt v. Mayor, 128 N. Y. 117; 38 St. Rep. 907. In the case last referred to the court of appeals, speaking of the office of inspector of masonry, said:

“The office of inspector being one created by the act, when filled, the incumbent became more than a mere ordinary employe or laborer engaged by the commissioners. Besides, it appears that his candidacy for the office must have been certified by a certificate from the civil service commission,'and his qualifications further certified to by at least three of the aqueduct commissioners. Such an imploye of the work cannot be classified or regarded as a temporary or occasional laborer. He fills an office with certain (more or less) responsibilities attached to it, and he becomes entitled to receive the compensation as it was fixed by the commissioners until they see fit to discharge him.”

For the foregoing considerations the plaintiff was entitled to the direction of a verdict, but the amount should not have exceeded the sum of $2,336.06. The record discloses no other error.

Defendants’ exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs to the defendants to abide the event, unless the plaintiff stipulate to reduce the verdict to $2,386.06, in which event defendants’ exceptions will be overruled, and judgment ordered for the plaintiff, upon the verdict as reduced, without costs at the general term.

All concur.


author: GILDERSLEEVE, J.

text:
    Sophia W. Adams, Resp’t, v. Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Damages—Excessive—Reduction.
    Ad excessive allowance of damages for injuries to premises caused by the operation of an elevated railroad in a street for a period subsequent to-the acquisition by the company of plaintiff’s easements, cannot be cured by the deduction of a pro rata amount from the whole amount allowed, where it does not appear that it was intended to allow the same amount for each month of the entire period.
    Appeal from a judgment in favor of the plaintiff.
    Davis, Short & Townsend (Julien T. Davies and J. C. Bushby, of counsel), for app’lt;
    Cannon & Atwater (H. G. Atwater and A. B. Cruikshank, of counsel), for resp’t.
   GILDERSLEEVE, J.

This action was brought to obtain an injunction against the further maintenance and operation of defendant’s elevated railroad, and also to recover past damages to rental values suffered by the plaintiff by reason of the defendant’s acts. When the action came on for trial, in October, 1893, the defendant admitted an estate in the plaintiff in the premises in question, and that plaintiff had suffered substantial damage. The usual injunction was thereupon granted, unless defendant condemned the property within nine months. The question of the amount of rental damages was reserved until further order. Defendant instituted condemnation proceedings, and the report of the commissioners awarding plaintiff $1,200 was filed July 28, 1894, confirmed ¡November 17,1894, and on December 20,1894, said award was paid; and defendant thereupon became the owner of the plaintiff’s easements in question. It is claimed by the appellant that the award upon confirmation became a liquidated debt, and that payment of the same on December 20,1894, related back to ¡November 17, 1894, the date of the confirmation, and that, hence, plaintiff was not entitled to rental damages subsequent to ¡November 17, 1894. There seems to be some authority for this contention, but we shall not now undertake to decide the point, inasmuch as the conclusion that we have reached as to the effect of an undisputed claim in the case renders it unnecessary.

The action was commenced April 15, 1891, and was tried on January 17, 1895.- The only issue in the case tried by the court below was as to the rental damages alleged to have been sustained by the plaintiff. The court awarded the pláintiff $2,545 for rental damages from April 15, 1885 (six years prior to the commencement of the action), to January 17, 1895 (the time of the trial). From the judgment entered upon that decison this appeal was taken. It needs no support of authorities to sustain the assertion that the plaintiff’s right to rental damage ceased upon defendant’s becoming owner of the easements. It is perfectly clear that not later than December 20, 1894, the easements in question became the property of the defendant. The finding of fact by the learned trial judge upon which the judgment is based is as follows (Ho. 12):

“By the maintenance and operation of said railroad from April 15, 1885, to January 17, 1895, the rental value of said premises has been damaged, with interest awarded because it is necessary for plaintiff’s compensation, in the sum of $2,545; and the plaintiff has suffered damage in that amount, through such acts of defendant.”

It therefore appears that the court awarded rental damages, subsequent to the acquisition by defendant of plaintiff’s easements, for the period from December 20, 1894, to January 17, 1895. Could we ascertain from the findings that the learned trial judge fixed the damage to the rental value for the month of December, 1894, and the month of January, 1895, at a specific sum for each of said months, we might answer the challenge to the judgment, upon the ground we are now considering, by deducting therefrom the pro rata amount for the period subsequent to the acquisition by defendant of plaintiff’s easements, and, as thus modified, affirm the judgment. But we have no such guide upon which to base a calculation. We consider the rule laid down in Martin v. Man. Railway Co., 63 linn, 350; 44 St. Rep. 543; fully supported, both by reason and authority, and as applicable to this case. The award for damages subsequent to the time that defendant became owner of the easements was an error that requires a reversal of the judgment. Having reached this eonelusion, it is unnecessary to discuss other points raised hy the appellant.

Judgment appealed from should he reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: PER CURIAM.

text:
    In the Matter of the Application by Ernest T. Haebler, for a Writ of Mandamus.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Exchanges—Suspension oe a membeb. *
    An exchange cannot suspend a member, under a by-law authorizing it, for non-iuiflliment of a contract, before the rights of the parties to the contract have been settled by an action, nor under a by-law providing therefor in case a member is accused of a proceeding inconsistent with just and equitable principles of traefe, where the exchange has taken no steps to carry out the purpose, recited in its charier, “to inculcate just and equitable principles of trade.”
    Appeal from an order granting an application for a writ of mandamus.
    Baldwin & Blackmar (Abel E. Blackmar, of counsel), for app’lt;
    Shiland & Honeyman (Robert B. Honeyman, of counsel), for resp’t.
   PER CURIAM.

order appealed from should he affirmed, with costs, upon the opinion at special term.

The opinion of GILDERSLEEVE, J., at special term, is as follows:

The law as laid down in the prevailing opinion in the case of People ex rel. Johnson v. New York Produce Exchange, 8 Misc. Rep. 552; 59 St. Rep. 531, must control the special term of this court until it shall have been disapproved hy a higher tribunal. The complaint and proceedings in that case were practically the same as in the one before me; and the facts so nearly approach those herein disclosed that I feel constrained to regard it as a controlling authority in the matter of this application. In both cases the complaint charged “proceedings inconsistent with just and equitable principles of trade,”-—in the one case, hy “breach of” a specified contract; in the other, hy failure to comply with “the terms of” a specified contract. In both cases the board of managers proceeded, in regular conformity with the by-laws, to investigate the matter; and in both cases they concluded that the accused party had in their opionion been guilty of condiict inconsistent with just and equitable principles of trade; and in both cases the accused was suspended, in perfect accordance with the by-laws. The two cases, therefore, being nraetically identical, and the general term of this court, having decided, in the Johnson Case, that the exchange was without jurisdiction to suspend the accused, I have no other alternative than to grant the application herein asked for. The application granted, with $50 costs and disbursements to the applicant.


text:
    Louis Shafarman, App’lt, v. Max Jacobs et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Pleading—Variance—Amendment.
    A complaint which states facts sufficient to constitute a cause of action for wrongful taking, while the evidence clearly shows that, upon the facts disclosed, the only action maintainable is for obtaining the plaintiff's goods by means of false and fraudulent representations, discloses a fatal variance between pleading and proof.
    2. Same.
    In such case, a motion to amend cannot be granted, where the amendment calls for an entire change in the cause of action.
    Appeal from a judgment dismissing the complaint.
    Jacob Manheim, for app’lt;
    Max Altmayer, for resp’t.
   GILDERSLEEVE, J.

action was brought to recover certain chattels, and the appeal is from an order entered at trial term dismissing the complaint, with costs, and directing the return of certain chattels to the defendant Max Jacobs, and from the judgment entered thereon. It is alleged in the complaint that, “before and at the time of the commencement of this action, the plaintiff was, and still is, the owner, entitled to immediate possession, of the following goods and.chattels: 48 4-12 dozen Derby hats, of the value of $659.50.” It further alleges that “the defendant Max Jacobs, at various times, between the 18th day of July, 1890, and the 19th day of September, 1890, did wrongfully take the said chattels from the possession of the plaintiff.” Then follows the affirmation that on or about the 12th day of October, 1890, the chattels in question were levied upon by the defendant Daniel E- Sickles, as sheriff of the city and county of Mew York, pursuant to two certain writs of execution against the property of the defendant Max Jacobs. The answer of respondent Max Jacobs admits the levy upon the goods under execution issued against him prior to the commencement of the action, and' admits the value of the chattels alleged in the complaint. It denies plaintiff’s ownership or right of possession at the time stated in the complaint, and alleges that the goods were properly and rightfully in respondent’s possession, as he had purchased the same from plaintiff in the ordinary and regular course of business on credit. The record shows that the plaintiff testified that he voluntarily delivered the chattels in question to the said defendant Jacobs. His furth er testimony tends to show that he was induced to make the sale and delivery through certain representations as to Jacobs’ solvency and financial standing.

Subdivision 3, section 1690, of the Code, provides that no action to recover a chattel can be.maintained “when it was seized.by virtue of an execution or a warrant of attachment against the. property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession.”

In Wise v: Grant, 140 N. Y. 593; 56 St. Rep. 496, the court of appeals said:

Where the sale and delivery of goods is procured by fraudulent representations on the part of the purchaser, the title and possession passed to him, notwithstanding the fraud, subject to the right of the vendor to rescind the contract of sale.” '

If the complaint states facts sufficient to constitute a cause of action, it is an action for wrongful taking, while the evidence clearly shows that, upon the facts disclosed, the only action maintainable is for obtaining the plaintiff’s goods by means of false and fraudulent representations. This variance is fatal to plaintiff’s complaint, and the complaint, for this reason, was properly dismissed.

The motion to amend could not be granted, for the reason that it called for an entire change of the cause of action. The motion was to change -the cause of action from one to recover a chattel to a cause of action for the conversion thereof.

The record discloses no errors. The order and judgment appealed from should be affirmed, with costs to the respondent.


author: McADAM, J.

text:
    Lillie H. Gilbert, Resp’t, v. Cecelia McKenna et al. Appl’ts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Pleading—Reply—Issue.
    The failure to reply to new matter in the answer does not prevent the plaintiff from bringing the cause to trial, in the absence of an order requiring such reply.
    Appeal from an order denying a motion to strike the cause from the calendar.
    Blandy, Mooney & Shipman, for app’lts;
    James Kearney, for resp.
   McADAM, J.

The action is to foreclose a mortgage on real property. The appellants were made parties defendant, on the ground that they had, or claimed to have, some interest in or lien upon the mortgaged premises subordinate to that held by plaintiff. They joined issue by an answer setting up an agreement made with the owner of'the fee for a mortgage which was to be prior to the one sought to be forclosed. When the action was called for trial, the appellants moved to strike the cause from the calendar because of the failure of the plaintiff to serve a reply to the new matter pleaded by them. This was on the erroneous theory that the cause was not at issue. The motion was denied, and from the order entered on such denial the present appeal is taken. The appellants have misconceived the practice. Ho order had been made requiring a reply to the new matter, and it was optional with the plaintiff to serve one. If without an order a reply was proper, the only effect of a failure to make it was to render unnecessary proof of the facts which should have been met by reply. Code, § 522; Bliss, Code PI. § 396; Randolph ,v. Mayor, etc., 53 How. Prac. 68; 2 Wait, Prac. 443, 444. The failure does not prevent a plaintiff from bringing the cause to trial, and the effect of the omission is properly determinable thereat. Adams v. Roberts, 1 Civ. Proc. Rep. 204;. 62 How. Prac. 253.

Irrespective of the question whether the answer contains a counterclaim requiring a reply, the refusal to strike the cause from the calendar was proper, and the order entered upon such refusal must be affirmed, with costs.


text:
    John W. Howard et al., Resp’ts, v. American Manufacturing Company, App’lts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Sale—Action fob price—Defense,
    nThe purchaser of machines cannot resist payment of the price on the ground that such machines will not work, where the power furnished by him under the contract is insufficient.
    Appeal from a judgment rendered in favor of plaintiffs on the trial by the court, without a jury.
    C. E. Souther, for app’lt;
    F. H. Wilson, for resp't.
   PER CURIAM.

judgment appealed from should be affirmed, with costs, upon the opinion filed by the learned trial judge. .

The opinion of McADAM, J., on the trial, is as follows:

The plaintiffs were to put up three Blackman Air Propellers in defendant’s factory, guarantied to prevent accumulations of smoke in the tempering room. The defendant was to furnish the power required to run the machines. The evidence shows that this power was to be obtained by attaching the propellers to the line of shafting in the tempering room. They were so affixed, but the power proved insufficient to drive them. The defendant undertook to remedy the defect by strengthening the shafting, etc., but this did not cure the difficulty. .Mr. Wolff, the defendant’s consulting engineer, then suggested that the power be taken from 8 shaft in the main building, and asked if the plaintiffs would bear half of $100, the expense of the change. The plaintiffs-agreed to this, but the defendant declined. The action is to recover $487, the agreed price of the propellers; and the defense, nonperformance, in that the machines did not do their work. The contract was a dependent one, containing concurrent obligations, and, if the plaintiffs performed their part, a recovery may, nevertheless, be had. 3 Am. & Eng. Enc. Law, 910. . This-upon the principle that, when the obligation by one party presupposes the doing of some act on the part of the other party thereto, the neglect or refusal to perform such act dispenses with the obligation of performance by the other. Mansfield v. Railroad Co., 102 N. Y. 205-211. And see Bogardus v. Insurance Co., 101 N. Y. 328; Gallagher v. Nichols, 60 N. Y. 438; Niblo. v. Binsse, 3 Abb. Dec. 375; Bryon v. Mayor, ect., 54 N. Y. Supr. Ct. 411. The machines were to be operated by steam, and the defendant could not, by refusing to furnish the necessary power, absolve itself from the obligation to pay. There can be no doubt about the fact that the plaintiffs connected the machines with power at the proper place. The connection was nade at the place designated in the letter which forms the contract, and at the spot agreed upon. Even if the contract had been ambiguous on this point, the law would hold the defendant to that meaning which it knew the other party supposed the words to bear. 2 Pars. Cont. (6th Ed.) 50Q. The defendant never intimated by word or act that the point where the connection was made was not the agreed place, and never suggested that it should have been made elsewhere. The defendant ought to have accepted the offer' to divide the expense of correcting the error in selection, as the plaintiffs were not responsible for the mistake. The .defendant’s consulting engineer certified that the work, in point of construction, was well done, and this is all that could be required under the circumstances. The plaintiffs are entitled to judgment for the amount claimed (less the $50), with interest aggregating $508, with costs; thirty days to make a case, and a like stay of execution after notice of entry of judgment. Findings passed upon and filed.


text:
    Eugene O. Sullivan, Pl’ff, v. New York Elevated Railroad Company, Def’t.

      (New York Superior Court, Special Term,

      Filed November 18, 1895.)

    Abatement and revivad—Procedure.
    Under section 757 of the Code, a proper procedure to revive an action ishy motion and not by supplement complaint.
    Action by Eugene O. Sullivan against the New York Elevated Railroad Company and others. Plaintiff died pending the action, and his administrator and the committee of the property of the widows and heirs at law moved to revive the action in their names.
    Evarts, Choate & Beaman, for motion;
    Davies & Rapallo, opposed.
   McADAM, J.

sole plaintiff has died, and the cause of action, which is in equity, survives and continues. Plaintiff’s administrator and the committee of the property of his widow and his heirs at law are his representatives and successors in interest, in" respect to. the premises involved in the litigation, known as “Nos. 92, 148-152 Pearl street.” The Code (section 757) provides that upon the death of a plaintiff “the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.” The proposed plaintiffs make the application themselves, by petition dnly verified by one of them familiar with the facts, and none of the allegations of the petition is denied or controverted. Ho answer to the petition has been made, except' by the demand that if the action be revived it must be upon a supplemental bill, to which the defendants may take issue upon the alleged devolution of interest. The question raised came up in Garvey v. Owens, 115 N. Y. 671, which was an action by the owner of real property to compel specific performance of an agreement to purchase. The sole plaintiff died before trial, and his sole heir at law was substituted, and the suit directed to be continued in his favor. Upon the trial defendant’s counsel objected to proceeding on the ground that, by section 544 of the Code, it was necessary for the plaintiff to have obtained leave to serve, and to have served, a supplemental complaint alleging the facts in regard to the death of the former plaintiff. The objection was overruled, and exception taken. Defendants then objected to the admission of evidence as to the death of the sole plaintiff, and the devolution of title to the substituted plaintiff. This objection was also overruled, and exception taken. The general term held that under section 757 “there was no necessity for serving a supplemental or amended complaint,” and a judgment in favor of the plaintiff for the relief demanded was sustained. 9 St. Rep. 227. On affirming the judgment the court of appeals wrote no opinion. The question as to the necessity of a supplemental complaint was a vital one, and the court of appeals must have approved of the ruling of the court below on that point; for the former court has several times held that, where it has affirmed a judgment without opinion, it must be assumed that it has approved of the opinion of the court below upon every question necessary to a decision of the case. Higgins v. Crichton, 98 N. Y. 626; In re Woolsey, 95 N. Y. 141; Hobson v. Hale, id. 610. The defendants urge that, if the application is granted without requiring supplemental pleadings, the order substituting the petitioners would be conclusive as to the question of their title; citing Isham v. Davison, 3 Thomp. & C. 745; Powers v. Man. R. Co., 37 St. Rep. 893; Smith, v. Zalinski, 26 Hun, 225; Id., 94 N. Y. 519. In the case last cited there was not, as here, the death of the sole plaintiff, but a transfer of his interest after the action was begun. It does not hold that in' the event of the substitution of a plaintiff the court must order supplemental pleadings, but that a transfer or devolution of plaintiff’s interest after issue joined “is usually a formal matter, in which the defendant has no concern, except to be protected from a double claim. In all other respects the vital issues of the litigation remain unchanged, and they only are to be tried,” and that “on the hearing (of the motion to substitute) the applicant must establish his ownership, and the defendant may deny it. If there be doubt about it, the court may deny the motion, and order the action to proceed, irrespective of any such transfer. If there be no doubt about it, or the defendant, by default or silence, admits it, the court may order the substitution; and even then, if justice or safety requires, it may order an amendment of the pleadings ‘or otherwise.’ By this process the defendant has ample chance to understand and.contest the new ownership. If, on the motion, he raises the issue, the court may decide it, or order such supplemental pleadings beyond the mere substitution as to carry the contested issue over to trial.” The application is not, under section 544 of the Code, for leave to serve a supplemental bill, but under section 757, which gives the petitioners the undeniable right to revive the action where, as in this instance, their successorship in title to the property by operation of law is undisputed. Under section 121 of the former Code, a supplemental complaint was necessary only in cáses where the motion to revive was made after the expiration of one year from the plaintiff’s death. Greene v. Bates, 7 How. Prac. 296. This' provision was carried into the new Code in 1877 (section 757), but was expunged two years afterwards (Laws 1879, p. 607), so that the course of legislation puts at rest any question as to the established practice. The only questions presented for determination are whether the plaintiff has died, and his interest in the cause of action passed to the petitioners. If the defendants at the hearing had tendered an issue upon the subject, by disputing the facts alleged, it might have been tried and decided then and there, and it is upon this theory that the order is held to be conclusive at the trial, Underhill v. Crawford, 29 Barb. 664; Washoe Tool Manuf’g Co. v. Hibernia Fire Ins. Co,, 7 Hun, 77; Id., 66 N. Y. 613; the principle being that if a party has had his day in court, and been given an opportunity of litigation an issue or contesting facts alleged, and fails to dó so, he cannot afterwards complain of the adjudication made against him, or be again permitted to open or question the matter so adjudicated. The defendants having raised no issue, but impliedly conceded the facts alleged, they failed to show any necessity for a supplemental bill. It is therefore difficult to conceive why an order to which the petitioners have proved themselves entitled as of right should he withheld simply because the law might impress upon it, at a subsequent stage of the litigation, a result which follows nearly every judicial determination almost as of course. To order a supplemental complaint as to facts undisputed, and perhaps indisputable, would be to sacrifice substance for form, and encourage delay,—an undesirable object to all well-intending litigants. Presumptively, the defendants cannot be “injuriously affected, or exposed to the danger of another recovery,” Washoe Tool Manuf’g Co. v. Hibernia Fire Ins. Co., 7 Hun, 77; Id., 66 N. Y. 613; and if a state of facts exists which would overcome the prima facie case repuired to be made, the same should be preseuted to the court, in opposition to the motion to continue, or subsequently. Obviously, no harm can come to the defendants from granting the petitioners’ application. The motion must be granted, and without prejudice to proceedings already had.

Motion granted, without prejudice to proceedings already had.


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    George W. Perkins, Pl’ff, v. Henry H. Heert et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed November, 1895.)

    1. Costs—Extra allowance.
    An extra allowance of costs, in an action to restrain the use of a trade mark, is to be computed, not on the mere amount of damages recovered, but on the value of the trade-mark.
    3. Same.
    But such allowance under § 3353 of the Code, should be what the court may deem a reasonable and moderate counsel fee in the cause, within the limits prescribed by the Code.
    3. Same.
    In this case it was held that the extra allowance could not exceed the sum of $100.
    Action by George W. Perkins against Henry H. Heert and others. Plaintiff moves for an extra allowance.
    August C. Nanz, for motion;
    William H. Klinker, opposed.
   GILDERSLEEVE, J.

This is a motion for an extra allowance under section 3253 of the Code, on the ground that the case was a difficult and extraordinary one. The action was to restrain defendants from using a certain trade-mark, and for an accounting and the payment of profits arising from defendants’ use of such trade-mark. The trial resulted in plaintiff’s favor, and judgment was rendered restraining defendants from using such trade-mark, and granting an accounting. The referee appointed to take such accounting found the sum due from defendants to be $75. The plaintiff claims an extra allowance, based, not on the amount recovered, but on the value of the subject-matter involved,—i. e. the trade-mark,—and he presents an affidavit putting its value at $100,000. But, as the Code prohibits an extra allowance of over $2,000 (section 3254) in such a case,, he limits his claim to that amount. It is true that a valuable trade-mark may, for the purposess of computing the allowance, additional to costs, in an action for its infringement, be regarded like an easement, and the allowance is to be computed, not on the mere ainount of damages recovered, but on the value of the trade-mark. See Munro v. Smith, 6 N. Y. Supp. 426. But the allowance in addition to costs) under section 3253 of the Code, should be what the court may deem a reasonable and moderate counsel fee in the cause, within the limits prescribed by the Code. See Sheldon v. Allerton, 2 Sandf. 630. It seems to me, from an examination of the papers before me on this motion, that the extra allowance could not exceed the sum of $100, which is accordingly granted.

Ordered accordingly.


text:
    People ex rel. Gilbert Higgins, App’lt, v. Abraham Tappen et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 19, 1895.)

    Municipal corfobations—Police—Discharge.
    The decision of the commissioners discharging a policeman will not be disturbed, unless clearly against the weight of evidence and appears to have been influenced by passion, prejudice, mistake or corruption. .
    Certiorari to review the action of the board of park commissioners in the city of New York, dismissing relator from the park police force.
    Louis J. Grant, for relator;
    Francis M. Scott, Corp. Counsel (Terence Farley, of counsel); for resp’ts.
   McADAM, J.

The relator was tried on the charge that while on duty in the Central Park, in citizen’s clothes, he did, on January 1, 1894, between three and four p. m., unjustifiably arrest Mr. Elliott Sandford on the charge of having committed an indecent assault upon the relator’s person, the last mentioned charge being false and untrue. It was charged that while Mr. Sand-ford was in the monkey house of the Central Park menagerie, at the time mentioned, looldng at the animals, with his gloved hands behind his back, he put his hands upon the person of the officer and' squeezed him. The explanation 'Mr. Sandford gave was that the monkey house was crowded with sight seers, that on that account the officer pushed up against him, and that if his hands did come in contact with the person of the officer, it was by the officer’s pressure against him, and without any intention on his part. The explanation is highly probable, and is no doubt true. At all events, the respondents found, upon evidence which amply sustains their finding, that the arrest was unwarranted, ^hey had jurisdiction to try the charges against the relator, which involved, not only the question whether he made an improper arrest, hut whether it was the result of design, rather than accident. If it was,—and the evidence sufficiently sustains the commissioners in so finding, the relator was guilty of conduct unbecoming an officer, which fully justifies his discharge. The authorities uniformly hold that if there be a fair conflict in the evidence, or if it be such that different inferences might be properly drawn from it, the determination of the commissioners, like the verdict of a jury, will not be interfered with, unless it is clearly against the weight of evidence, and appears to have been influenced by passion, prejudice, mistake or corruption. While the respondents may have been pleased to have the opportunity ■of vindicating a gentleman of character from the peculiarly offensive charge made, the record does not warrant imputing to them passion, prejudice, or corruption. We are satisfied that they acted conscientiously, and with a sense of the responsibility attending their position, and find no reason to dissent from the result at which they arrived. That the relator was wrong in making the arrest clearly appears by the proofs. That he was liable to err may be assumed from the fact that his record discloses fourteen separate charges, extending from 1882 to 1889; having been fined for neglect of duty, violation of rules, conduct unbecoming an officer, insubordination, and being off post, and neglect of duty. These things give color to the theory that in this instance the relator may have been as unmindful of his duty as in the fourteen other cases where he had been so adjudged.

The adjudication must be affirmed, with costs.

All concur. '


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    Margaret Elizabeth Rouge, Resp’t, v. Gabriel Mark Rouge, App’lt.

      (New York Superior Court, General Term,

      Filed Dec. 18, 1895.)

    Statute—Retroactive.
    Section 1, chapter 578 of 1895, amending § 635 of the Code, relates solely to the remedy and, therefore, applies to actions for injuries occurring before it took effect.
    Appeal from an order denying a motion to vacate an attachment by reducing the amount of the attachment.
    David Murray, for app’lt;
    Edward Gebhard, for resp’t.
   GILDERSLEEVE, J.

This action is for a personal injury. The plaintiff procured an attachment to be issued for the amount demanded in the complaint. The defendant appeared specially, for the purpose of moving to set aside the attachment, on the ground that the papers upon which it was granted were insufficient. The motion was decided adversely to defendant, and an urder was entered sustaining the attachment, but reducing the amount for which defendant’s property was seized or impleaded to the sum of $2,500. The appeal before us is from this order. It was first urged by the appellant that the superior court of the city of New York has no jurisdiction in the case, for the reason that it does not appear that plaintiff is a resident of the city of New York. This ground is obviously untenable, inasmuch as in the plaintiff’s uncontradicted affidavit, upon which the attachment was granted, she swears that she is “now residing in the city of New York.”

The claim of the defendant that the granting of the attachment,, under the facts as they appear, give a retroactive effect to the provisions of section 635 of the Code of Civil Procedure, which went into operation September 1, 1895, cannot be maintained. The action was not commenced until after September 1, 1895. The statute in question did not create the cause of action, but is only remedial.

The plaintiff seems to have met all the requirements of section 635 of the Code. For these reasons, and the reasons stated in the opinion of the learned special term judge, the order appealed from should be affirmed, with $10 costs and disbursements.


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    People ex rel. Edward J. Flood, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 19, 1895.)

    5. Evidence—Intoxication.
    Intoxication may be proved by observation; expert evidence is not necessary.
    2. Municipal corporation—Police—Discharge.
    The determination of the police commissioners in removiug a policeman will not be interfered with, unless it is clearly against the weight of evidence or appears to have been influenced by prejudice or mista ire.
    Certiorari to review the action of the board of police commissioners in the city of New York, in dismissing relator from the police force.
    Louis J. Grant, for relator;
    Francis M. Stott, Corp. Counsel, for resp’ts.
   McADAM, J.

The relator was tried on charges preferred of conduct unbecoming an officer, in that on December 17,1893, he was brought to the station house by Roundsman Ryan, at 3:15 p. m., in a condition unfit to perform his tour of reserve duty. The relator went on his post on the day in question at eight a. m. His tour extended up to one p. m., shortly after which hour he was relieved by Officer Nolan, at the corner of Canal and West streets. Thereupon he started for the station house, by way of Canal and Sullivan streets. At about Broome street, he fell and cut his head. He saw two young men passing by, and asked them to help him alongside of a box, which they did. While there, the roundsman came along, and took him to the station house, where the sergeant in charge notified the captain of the circumstances, and, at the request of the commanding officer, the complaint was made by the sergeant.

The question is whether the unseemly condition of the officer was caused by illness or intoxication. The relator testified that he was not under the influence of liquor at the time; that ho drank nothing that day; and that the fall was occasioned by vertigo. There is evidence in the case sustaining this view, while the testimony in support of the charges was equally strong the other way. Of course, the witnesses would not swear positively that the relator had been drinking, for they did not see him drink; but they did testify that his actions were those of a drunken man, and that his breath smelled of liquor. This evidence sufficiently established the charge. It is elementary that drunkenness may be proved by observation; expert evidence is not necessary. People v. Eastwood, 14 N. Y. 562; MeCarty v. Wells, 51 Hun, 174; 20 St. Rep. 630; People ex rel. Kelly v. MacLean, 37 id. 628; People ex rel. Shields v. Hayden, 7 Misc. Rep. 292; 57 St. Rep. 544.

The officer had been ón the force for about ten.years, and had never before been sick, nor had he asked for leave of absence; but his record shows that sixteen complaints had been made-against him during that time. On three of these occasions he had been reprimanded. He had been fined thirteen times, the penalty in one instance being ten days’ pay for. an assault on Eosie Oreci. The primary power of passing upon the weight of conflicting evidence rests in the respondents. In support of their determination, the court will indulge the same presumption a& in the case of a finding of a jury; and, where different inferences-may be properly drawn from the evidence, such determination will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by prejudice or mistake. Tested by these rules, wé find no error, prejudice, mistake, or abuse of discretion on the part of the commissioners, and, as the proofs justify the result arrived at, the adjudication must be affirmed, with costs.

All concur.


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    Ida Schulman, Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    1. Negligence—Crossings of street railroads.
    Street- cars and pedestrians have equal rights at crossings and to uses of the streets, and what is proper care and precaution on the-part of those-in charge of cars to prevent accidents, is a question of fact in each case.

      2. Same—Warning.
    It is error in a charge to a jury to predicate liability upon a failure to give a signal at the crossing where the party injured saw the car approaching.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying, a motion for a new trial.
    H. A. Robinson and J. Brownson Ker, for app’lt;
    D. Leventritt and J. H. Cohn, for resp’t.
   McADAM, J.

The action is to recover damages for personal injuries sustained by the plaintiff. While attempting to cross the defendant’ tracks at Broadway and Broome streets, on October 26, 1893, she was knocked down by one of the defendant’s cable cars, called by her the “south-bound car.” The accident occurred shortly after six p. m., when the plaintiff was going home from work, her route lying across Broadway. The plaintiff attempted to cross on the upper crossing at Broome street. She looked around, and observed a north-bound car very near the corner, and the south-bound car apparently about half a block .away. The north-bound car passed by, and she had almost reached the further rail of the first track in safety, when a horse and wagon, moving westerly from Broome street into Broadway, turned into the space between the tracks; the horse towards the plaintiff’s face; the wagon sweeping around when the horse was reined in, cutting off her progress. While the plaintiff’s attention was occupied with this threatened danger, the south-bound car bore down upon her, striking her with such force that she was thrown several feet before she fell; and the car, still advancing, came in contact with her again before it was stopped. There is the conflict usual in cases of this character; but as the jury, on evidence satisfactorily sustaining the result, found for the plaintiff, we assume, the facts to be as stated by her.

While it has been held that street cars have a preference in the streets, and that it- is the duty of pedestrians to respect that right (Fenton v. Sec. A. Railroad Co., 126 N. Y. 625; 36 St. Rep. 385; Kennedy v. Railway Co., 32 N. Y. Supp. 153), we must not be unmindful of the fact that this accident occurred at a crossing where pedestrians, particularly at this hour in the evening, are expected to cross the thoroughfare in large numbers, and where their right to do so is not subordinate, but equal, to that pos sessed by the railroad company. The defendant’s car was propelled by cable, and was capable of attaining a high rate of speed. YTiile the defendant had a right to use this motive power, it was the introduction of a new agency, and care commensurate with the danger was required in its management. Though there is no statutory duty imposed up on,the defendant to sound a gong or give other warning, it is nevertheless true that, if the exercise of proper care-in the management of the car in a particular case requires some warning to be given, it is negligence not to give it. Byrne v. Railroad Co., 104 N. Y. 362; 10 N. E. 539. The case was one particularly for the jury; it was for them to say whether the position the plaintiff occupied was assumed through her own negligence, whether she found, herself there without fault on her part, and whether the gripman, under the circumstances, exercised that care which the exigencies of the occasion required. The verdict, which is moderate in amount, seems to he justified by the evidence, and we are not disposed to disturb it on the facts.

The most serious question in the case is presented as follows:

“Plaintiff’s Counsel: I ask your honor to charge that if the gripman, upon approaching the crossing, failed to exercise due and reasonable care to warn crossing pedestrians of the car’s approach, then the defendant is liable. The Court: And the plaintiff was entirely free from any contributory negligence. With the qualifications added by the court, the request is charged. (Exception taken by defendant’s counsel.)”

It will be observed that, while the court did not charge that there was any absolute duty on the part of the gripman to sound the gong, it gave a binding instruction to the effect that, if he failed to warn crossing pedestrians of the car’s approach, the defendant was liable. This was going to far. In view of the conceded fact that the plaintiff saw the car approaching, warning to her was unnecesary. Sounding the gong or shouting would therefore have been of little practical service. A vigorous application of the brakes was what was required, and if the gripman had applied them in time, and stopped the car as soon as that could be done by the exercise of reasonable care on his part, the defendant, as a matter of law, would not be liable: Ho defect in the brakes was alleged or proved, and it must be assumed, therefore, that they were amply sufficient for all exigencies. Yet, irrespective of this controlling feature, the mere failure to warn crossing pedestrians was charged to be an omission of duty in itself sufficient to make defendant liable. This was error, for' which the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: HATCH J.

text:
    Mary A. Donahue, as Administratrix, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Trial—Instructions.
    It is erroneous to give instructions predicated on facts as to which there is no evidence.
    2. Appeal—Verdicts.
    The court is authorized to set aside verdicts when not only contrary to evidence, but also contrary to law.
    '§. Same—Exception.
    Where; in such case, there is before the supreme court on appeal a case clearly presenting the^srounds of error, such eourt will exercise its power to correct the error with or without such exception.

      Appeal from an order granting a motion for a new trial.
    James F. Gluck, for app’lt;
    Silver & Brown, for resp’t.
   HATCH J.

The special ground of error assigned upon the motion consisted in a misdirection of the court to the jury respecting a question of law. The action was to recover damages for causing death of plaintiff’s intestate. After the jury had retired for deliberation, they asked for further instructions, and, being brought into court, asked if defendant was responsible for the negligence of the fireman in not. blowing the whistle when he saw these men approaching the tracks. The court replied:

“¡Not necessarily. They are not compelled either to blow the whistle or ring the bell. But it is necessary for them to use care and dilgence in approaching a crossing to avoid injuring people, whether they should have done something more than they did, is for the jury to say, in order to reasonably insure the lives or safety of the people. There is no law that requires them to ring a bell or blow a whistle. By a Juryman: The question is whether they exercised due diligence in regard to the safety of these men, when the fireman saw them, in not giving warning. By the Court: You must determine that question whether the railroad company ought to have done more to reasonably insure the safety of the people passing over the street. That becomes material if you find that the plaintiff’s intestate was free from negligence, because, if the dead man was in any way negligent, it would not make any difference whether the railroad company was negligent or not. Hr. Gluck. Under the city charter, we are not allowed to blow any whistle at all. The court will take notice of that. By the court: Yes, I think they are not permitted by the ordinances to do that. By a-Juryman: In order to save life, would it not have been right and fair not to pay attention to the ordinances? By the Court: ¡No, the railroad employes had a right to obey the law. It was their duty to conform to the law. The real question for you is whether the railroad company exercised reasonable care and diligence in trying to protect people.”

It is apparent that the jury had a clear conception of the point at issue, and. that they thorougly understood the charge of the court, and appreciated the fact that the ordinance prohibiting the blowing of the whistle was one of controlling importance, and they desired to be left untrammeled by its effect, if that were possible, in determining the liablity of defendant.. This condition was-produced by defendant’s counsel, as in other respects the court’s charge was unexceptionable, and properly stated the rule of law. We are, therefore, able to say that the charge that no whistle could be blown quite likely produced the verdict which the jury finally rendered. The instruction of the court was clearly erroneous. ¡No ordinance had been proved in this case, and there was nothing in the evidence upon which to base the charge; consequently no evidence upon which the jury could relieve defendant of an act of negligence for a failure to blow its whistle, if such' action was proper and necessary to signal its presence and give due warning to deceased. It can therefore be said that such act upon their part was not only contrary to evidence, but contrary to law; and the court has already been authorized to set aside verdicts under such circumstances. Stanard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Wasilewski v. Wendell, 9 St. Rep. 508. In fact there was no such ordinance as that invoked by defendant. The ordinance only prohibited the blowing of a whistle when it was not essential for signal purposes. Section 4, Ordinances, Oity Charter, p. 42.

It is claimed that no exception was taken to the charge, in consequence of which no question was presented, and could not be, on a motion for a new trial based upon section 999, Code Oiv. Proc. That the court has the power to grant a motion for a new trial with or without an exception does not seem to be disputed, nor can it be successfully. McDonald v. Walter, 40 N. Y. 555; Whittaker v. D. & H. Canal Co., 49 Hun, 400; 22 St. Rep. 409. It is doubtful if the claim that no exception was taken can be upheld. The record shows that the jury was returned into the court, and when the instructions were given it does not appear that plaintiff or her attorney were present. The record shows that defendant’s attorney was present and participated in the instruction, and was in fact responsible for the erroneous charge. We must assume that the record states all that transpired, and that does not show that plaintiff or counsel was present. Where such is the case, the party may raise the question as though a formal exception had been taken. Wheeler v. Sweet, 137 N. Y. 435; 51 St. Rep. 77. It is true that affidavits are attached to the record, and that such affidavits show that a clerk of plaintiff’s counsel was present, and assented to the charge as made. We are not now called upon to express an opinion upon the effect of the action of the clerk, for the reason that these affidavits are not now before us. They are not recited in the order, nor does it appear that the judge considered them, or that he was expected to consider them, upon the merits of the motion. The brief of the respondent states that they were used to secure a postponement of the hearing, and their contents seem to point in that direction. But, however that may be, they form no part of the record, as they are not recited in the order as having been used, and nothing appears to show that they were used upon the merits of the motion. Thompson v. Taylor, 13 Hun, 201; Smith v. Smith, 43 N. Y. Super. Ct. 140. If, however, the contention could be sustained that it was essential to make a case in order to present the ground of error, it is sufficient, in answer, to say that there is a case now before this court clearly presenting the ground of error, and that this court is now possessed of power to correct the error, with or without an exception, and we think this a proper case for the exercise of the power. Roberts v. Tobias, 120 N. Y. 1; 30 St. Rep. 189; Hogan v. C. P. N. & E. R. Railroad Co., 124 N. Y. 647; 36 St. Rep. 352; Benedict v. Johnson, 2 Lans. 94; Panama Railroad Co. v. Charlier, 27 St. Rep. 381. There can be no ground of complaint made by the defendant to this rule. No objection was raised before the court below that it was without power to grant the relief, or that the practice was in any sense irregular; and now, having prepared the proper record, and brought it into this court, he should not be heard to complain if this court now exercises upon a proper record its power to correct the error which the record discloses. If we could now say that the court below had no power to'correct the error upon a motion made under section 999, the question now here would not be answered; for among the grounds of motion is a separate statement of the ground of eror relied on here, independent of those: embraced in that section, and upon which we think the court below had the power to act, and that its action was in harmony with right and justice. What questions are embraced in die phrase “contrary to law” we do not now consider. The authorities are not harmonious, and whether a misdirection by a court to the jury, where no exception is taken, upon a vital point in the case, can be reached as a basis of error under section 999, we do not now determine. A consideration of the early rule and the practice which obtained thereunder tends to the conclusion that it may be done. Learned judges have recently said that it might not be. We express no opinion, as it is not necessary to a decision of this case.

The order appealed from is affirmed, with costs and disbursements.