text:
    The People, Resp’ts, v. Carson J. Sheldon et al., App’lts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Conspiracy—Restraint op trade.
    Where retail dealers in coal enter into an association under an agreement requiring the members to sell at prices fixed by the association, with penalties for disobedience, etc., for the purpose of controlling the price of coal and managing the business of the sale of coal, so as to prevent competition in price between the members of the exchange, the agreement is illegal, and if a jury finds that this was their intent and that the price of coal was raised in pursuance of the agreement to effect its object, the crime of conspiracy is established.

      3. Same—Overt act.
    There must be some act in pursuance of such agreement and done to effect its object before the crime is consummated. The raising of the price of coal where there is a conspiracy to regulate the price is such an act whether the price fixed is reasonable or excessive.
    Appeal from the affirmance by the general term, fifth department, of judgment of conviction in the Niagara county sessions, on indictment for conspiracy. The indictment set forth an agreement between the defendants and others, comprising all the retail coal dealers in the city of Lockport, except one, entered into in March, 1892, to organize the “ Lockport Coal Exchange,” which agreement was as follows:
    “CONSTITUTION AND BY-LAWS.
    “NAME.
    “ The name of tins exchange shall be the Lockport Coal Exchange.
    “ OBJECTS.
    “ The objects of this exchange shall be: To foster trade and commerce in coal, wood and all the products appertaining to the same; to protect and secure freedom from unjust and unlawful exactions; to diffuse accurate and reliable information as to the retail coal trade, and of the responsibility and standing of customers, and other matters among its members for their mutual protection and benefit; to settle differences between its members; to produce uniformity and certainty in the customs and usages of such trade; to promote a more enlarged and friendly intercourse between merchants and dealers in coal and wood, and to provide, establish and maintain such rules and regulations as may be proper and necessary for the mutual co-operation, interest and protection of the retail dealers in coal and wood in the city of Lockport, and in furthering the coal trade interests generally.
    “ It shall be the duty of all members to strictly obey all the provisions of the constitution, by-laws and resolutions of the exchange, and permit to the secretary the free exercise of the duties imposed upon him in enforcing them.
    “ OFFICERS.
    “ The officers of the exchange shall be a president and vice-president, who shall be elected by "the exchange, and who shall be members of the exchange; and also a secretary and treasurer, elected by the exchange.
    “ The officers shall hold office for the term of one year, and until their successors are elected and shall have duly qualified, and any officer may be removed from office by the five-sixths vote of all the members of the exchange at any regular or special meeting thereof.
    “ COMMITTEES.
    “ There shall be such committees as the president or the board of trustees may from time to time designate.

      “ PRESIDENT AND VICE-PRESIDENT.
    “ The president shall preside at all meetings of the exchange, or in his absence the vice-president. In the absence of the president and vice-president, a presiding officer shall be chosen from the members of the exchange. The president shall be ex-officio a member of all committees.
    “SECRETARY.'
    “ The secretary shall not be a member of the exchange nor in any manner personally interested in the coal trade. He shall be elected by at least a five-sixths vote of all the members of the exchange at a regular or ' special meeting, due notice of said intended election having been sent by mail to each member at his regular business address at least five days previous to the meeting.
    “ The secretary shall keep a record of the meetings of the exchange, a register of its members, officers and committees, and conduct all correspondence of the exchance, and perform such other duties in connection with his office as may be imposed upon him by the exchange. He shall instantly investigate all charges preferred against the members of the exchange on all well-founded suspicions without fear or favor, and conduct the investigation both to obtain proof and when presented before the exchange, and shall render his decision in each case to the exchange within ten days from the date on which charges are made, unless further time is given him by the exchange.
    “He shall be permitted to see any portion of the books of anv member when in pursuit of evidence of wrongdoing, and may demand an affidavit, when he thinks necessary, to refute or sustain a specific charge.
    “He shall also collect material for, and compile a list of persons who are poor pay, for the mutual protection and benefit of the members of the exchange. He shall also be the keeper of the seal of the exchange,,and receive such salary as may be determined upon by the exchange.
    “ Before the secretary shall enter upon the duties of his office, he shall make oath that he will honestly and fearlessly perform the duties prescribed by the constitution and by-laws, and that he will keep in honor and secrecy any and all information by him acquired regarding the business of the various members as he from time to time may investigate them, except any facts connected with any violation of the laws of the exchange, which the exchange or any member is entitled to know. If practicable, the secretary shall be a notary public. The secretary shall not disclose to any member of the exchange any information regarding any investigation while he is making the same.
    “ TREASURER.
    “ The treasurer, who shall also be the secretary, shall have charge of the funds of the exchange, disburse the same, on the ■order of the board of trustees, countersigned by the president, and. shall report at all regular meetings; and his accounts shall be open for proper inspection at all proper times. He shall give bonds for the proper protection of the exchange.
    “ MEMBERSHIP.
    “The exchange shall be composed of active and associate members.
    “Active members shall comprise any retail coal dealer, firm or company, who has a yard or dock, and the usual appliance for -doing a coal business in the city of Lockport.
    “Associate members shall comprise any individual company or firm that sells coal in- the villages around Lockport, and who approves the objects of, and agrees to co-operate with the exchange. Associate members shall pay an annual fee of five dollars, and shall have all the privileges of active members, except the right of voting.
    “ DISCIPLINE.
    “If a member is charged with violating any provision of these by-laws, or any rule or resolution of the exchange, or of being guilty of conduct unbecoming a member, or prejudicial to its interests, or of giving short weight or over weight, he shall be summoned before the secretary to answer the charge.
    “ If, upon the charge and defense being heard by the secretary and he shall decide to sustain the charge, the member shall be declared ‘ in default ’ and the member shall be considered to be in default until five-sixths of all the members, at a regular or special meeting, shall vote to reinstate him as a member of the exchange in good standing.
    “A member who shall be declared ‘in default’ shall absolutely and irrevocably forfeit all rights to all money, property or •other value held by the exchange, as its own or in trust, and shall also forfeit all rights of membership in the exchange, unless he be reinstated in good standing, and no member shall be so reinstated except by a five-sixths vote of all members of the exchange .at a regular or special meeting assembled after proper notice, and •only after depositing with the treasurer $100 as fee for renewal of membership.
    “ When a member shall be accused by the secretary, in any •open meeting of the exchange, of having violated any provision •of this constitution and by-laws, or of any resolution, and evidence is lacking to absolutely refute or sustain the charge, it shall be obligatory upon such member to make proper affidavit that he has in no instance sold or delivered coal for which he has not received the full price at which the majority of the other members were selling coed of the same size at the same time, and that he has not directly or indirectly given any rebate, commission or other concession equivalent to cash, thereby actually reducing the established market price made by the Lockport Coal Exchange, and that not less than 2,000 and not more than 2,000 pounds have, in his knowledge, been sold by himself, his partner, or his employes, or delivered as a ton.
    “ Resignations shall be made in writing to the president or secretary, and be referrred to the board of trustees for their action; but no resignation will be accepted until all dues, fines, charges and penalties against such member shall have been paid and settled.
    “ When the exchange, or secretary thereof, shall declare a member ‘ in default ’ the secretary shall notify every member of the exchange by mail, and such notice shall be authoritative.
    “ When a member defies the exchange by persistent wrongdoing, and is declared  in default ’ and persistent, the secretary shall notify the shippers of coal to the Lockport market that the said member is ‘ in default ’ and persistent, and for this reason is not entitled to the privileges of membership in the Lockport exchange.
    “ ELECTION OF MEMBERS.
    “A candidate for membership shall be proposed in writing by a member at a regular meeting of the exchange, and be recommended by two members in good standing, and at the next succeeding regular meeting be voted upon.
    “A two-thirds vote of the members of the exchange shall be requisite to elect.
    “ PRICE OF ANTHRACITE COAL.
    “ The price of coal at retail shall, as far as practicable, be Icept uniform, and it shall require a five-sixths vote of all members of the exchange at any meeting to advance or reduce the retail price of coal, and no price shall be made at any time which amounts to more than a fair and reasonable advance over wholesale• rates, or that is higher than the current prices of the exchanges at Rochester or Buffalo, when figured upon corresponding freight, tariff, but at no time shall the price of coal at retail exceed' one dollar above the costs of the same at wholesale, except by the-unanimous vote of all the members of the exchange.
    “All votes upon the price of coal shall be viva voce.

    “ The sale of coal shall be through the nominal channels of the trade. Soliciting shall be discouraged, and no club orders of associated buyers to reduce prices shall be considered or accepted.
    “bio member shall employ any person temporarily to solicit orders, either on salary or on commission, and no signs indicating ‘ Orders taken for coal ’ shall be displayed at groceries or other ‘ outside places,’and no habitual orders for second parties shall be received or filled when sent in by such agencies, whether on commission or other form of reciprocity, or only as a matter of friendship.
    “ Except that each member may have one place for taking orders in addition to his regular yard office.
    “ MEETINGS.
    “ The annual meeting of the exchange shall be held on the first Monday of April of each year. The regular meeting shall be held on the first Monday of each month. Special meetings may be called by the president or upon the written request of .three members, which request shall be sent to the secretary, stating the object of such meeting; and the notices of any special meeting shall state the object of the same, and no other business shall be transacted at such meeting.
    “At all meetings of the exchange seven members shall constitute a quorum, but this shall not authorize them to transact any business which under the constitution and by-laws requires the vote of a greater number of the members. Any member may be represented at a meeting by an authorized person connected with his business, and such persons shall be entitled to the privileges of such member.
    “Any vacancies in any of the official positions of the exchange shall be filled by the board of trustees when ordered by the president (or in his absence by the vice-president) within two weeks after such vacancy occurs, or as soon thereafter as practicable.
    “ MEMBERSHIP FEE.
    “ There shall be a membership fee of one hundred dollars, to be paid to the secretary by each member at the time of signing the constitution and by-laws, and during the first week of each mqnth the further sum of five dollars for current expenses.
    “At the end of the year, upon vote of the exchange, there shall be returned to such member the full amount of such monthly payment so paid in by the members, less the proper proportion due for each member for the current expenses of the exchange, which amount shall be deducted from each by the secretary. Any member of the exchange retiring from the coal business in Lock-port in good standing with the exchange shall be entitled to receive from the treasurer the original amount paid in by said member for membership, that is, one hundred dollars, less any assessment for expenses or dues that may properly belong to such member to pay, upon filing an affidavit with the secretary that the said member has absolutely withdrawn from all direct or indirect interest in coal business in .Lockport, and that during his term of membership he has not violated any of the provisions of the constitution and by-laws or resolutions of the Lockport Coal Exchange.
    “ ORDER OF BUSINESS.
    “At all meetings of the exchange the order of business shall be:
    “ Calling of roll,
    “ Reading of minutes,
    “Proposal of membership,
    “Reports of committees,
    “ Communications, bills or notices,
    “Unfinished business,
    “ Miscellaneous business.
    “ This • order of business may be suspended at any meeting of the exchange by a vote of two-thirds of the members present.

      “ RECORDS AND MINUTES.
    “ The minutes and records of the exchange shall be open at all times to the inspection of members.
    “ AMENDMENTS.
    This constitution and by-laws may be amended by an affirmative vote of five-sixths of the members of the exchange at a regular meeting, provided that notice of such proposed amendment shall have been presented in writing 'at a previous regular meeting.
    “We, the undersigned, agree to abide by the above constitution and by-laws of the Lockport Coal Exchange.
    “ James Lennon & Son,
    “ Angevine & Hoover,

      “ P. H. Tuohey,
    “ Charles Whitmore & Co,
    “ J. Marc. Fowler,
    “ Sheldon N. Cook,
    “ Upson & Stevens,
    “ E. S. Brown,
    “ M. W. Carr,
    “ Ferrin Bros. Co., Inc.,
    “ M. McManus,
    “ Edward B. Jelly.”
    The indictment, among other things, alleged that the agreement constituted an unlawful conspiracy to raise, increase and augment the rates and prices of coal, at retail, in the city of Lockport, and to destroy free competition among the signers of the agreement and others in the sale of coal in said city, and to compel the consumers of coal to pay therefor the prices fixed by the coal exchange. It alleged that, in pursuance of said conspiracy, the defendants and others, members of said exchange, organized the same, elected officers, and by resolution did “ fix, determine and establish the rate and price of anthracite coal at retail, in said city, at four dollars and seventy-five cents per ton for egg, chestnut, stove and grate coal, and three dollars and seventy-five cents per ton for pea coal, and other higher rates for small quantities of the same, said rates and prices so fixed, determined and established being over seventy-five cents per ton higher and in advance of the then market price of such coal at retail in said city." The indictment alleged an unlawful intent, and concluded by an averment that the “conspiracy as aforesaid, so carried into execution as aforesaid, is of grievous injury to trade and commerce, prejudicial to the public good and welfare, against the form of the statute,” etc. The proof established the execution of the agreement as alleged ; the organization of the exchange by the election of officers; the fixing of the price of coal at an advance beyond the then market price, which price was thereafter charged therefor ; the notification of the wholesale dealers, by the secretary, of the organization of the exchange, with the names of the members.
    Other facts are set forth in the opinion.

      E. M. Ashley, for app’lts ; P. F. King, for resp’ts.

       Affirming 50 St. Rep., 231.

   Andrews, Ch. J.

Section168 of the Penal Code makes it a¡ misdemeanor for two or more persons to conspire (sub. 6) “ to-commit any act injurious to the public health, to public morals,, ■or to trade or commerce, or for the perversion or obstruction of public justice, or of the due administration of the law.” The-Revised Statutes contained a similar provision. 2 Rev. St., 692,. § 8, sub. 6.

The fact that the defendants subscribed the constitution and bylaws of the “Lockport Coal Exchange,” and participated in its; management, was not controverted on the trial. Mor was there-any dispute that the object of the organization was to prevent competition in the price of coal among the retail dealers, acting as-the “ Lockport Coal Exchange," by constituting the exchange the sole authority to fix the price which should be charged by the members individually for coal sold by them. Mor is there any dispute that in pursuance of the plan the exchange did proceed to fix the price of coal, and that the parties to the agreement were thereafter governed thereby in making sales to their customers. Mor is it questioned that the price first established was seventy-five cents in advance of the then market price, and that there was. afterwards a still further advance.

The defendants gave evidence tending to show (and of this there was no contradiction), that before and at the time of the organization of the exchange the excessive competition between the dealers in coal in Lockport had reduced the price below the actual cost of the coal and the expense of handling, and that the business was carried on at a loss. It was not shown that the prices of coal, fixed from time to time by the exchange, were excessive or oppressive, or were more than sufficient to afford a fair remuneration, to the dealers.

"The trial judge submitted the case to' the jury upon the proposition that if the defendants entered into the organization agreement for the purpose of controlling the price of coal and; managing the business of the sale of coal so as to prevent competition in price between the members of the exchange, the-agreement was illegal, and that if the jury found that this-was their intent, and that the price of coal was raised in pursuance of the agreement to effect its 'object, the crime of conspiracy was established. The correctness of this proposition is the main-question in the case.

If the confederacy into which the defendants entered was an act “injurious to trade or commerce,” irrespective of its results in the particular case, then there is no difficulty in maintaining the conviction. If a combination between independent dealers to prevent competition between themselves in the sale of an article of prime necessity is, in the contemplation of the law, an act. inimical to trade or commerce, whatever may be done under and. in pursuance of it, and although the object of the combination is merely the due protection of the parties to it against ruinous-rivalry, and no attempt is made to charge undue or excessive Erices, then the indictment was sustained by proof. On the other and, if the validity and legality of an agreement having for its object the prevention of competition between dealers in the same-commodity depend upon what may be done under the agreement, and is to be adjudged valid or invalid according to the fact whether it is made the means for raising the price of a commodity beyond its normal and reasonable value, then it would be difficult-to sustain this conviction, for it affirmatively appears that the-price fixed for coal by the exchange did not exceed what would afford a reasonable profit to the dealers. It was said by Parker, Ch. J. (Lord Macclesfield), in his celebrated judgment in Mitchel v. Reynolds, 1 P. Wms., 181, which was the ease of a bond taken from the defendant on the sale by him to the plaintiff of the lease of a bakehouse, claimed to be void as in restraint of trade, “in all restraints of trade, where nothing more appears, the law presumes-them bad; but if the circumstances are set forth, that presumption is excluded; and the court is to judge of these circumstances, and to determine accordingly ; and if upon them it appears to be a just and honest contract, it ought to be maintained.”

If this agreement and what was done under it is to be judged as an isolated transaction, and its rightfulness is to be determined, alone upon the particular circumstances, whether it did or did not produce an injury to trade, we might well hesitate. The obtaining by dealers of a fair and reasonable price for what they" sell does not seem to contravene public policy, or to work an injury to individuals. On the contrary, the general interests are-promoted by activity in trade, which cannot permanently exist-without reasonable encouragement to those engaged in it. Producers, consumers and laborers are alike benefited by healthful conditions of business.

But the question here does not turn on the point whether the-agreement between the retail dealers in coal did, as matter of fact, result in injury to' the public or to the community in Lockport. The question is, was the agreement one, in view of what might have been done under it, and the fact that it was an agreement the effect of which was to prevent competition among the coal dealers, upon which the law affixes the brand of condemnation, and which it will not permit.

It has hitherto been an accepted maxim in political economy that “ competition is the life of trade.’’ The courts have acted upon and adopted this maxim in passing upon the validity of" agreements the design of which was to prevent competition in trade, and have held such agreements to be invalid. It is to be noticed that the organization of the “ exchange ” was of the most formal character. The articles bound all who became members-to conform to the regulations. The observance of such regulations by the members was enforced by penalties and forfeitures. A member accused by the secretary of having violated any provision oí the constitution or by-laws was required to purge himself by affidavit, although evidence to sustain the charge should, be lacking.

The shippers of coal were to be notified in case of persistent default by the member that “ he is not entitled to the privileges of membership in the exchange.” No member was permitted to sell coal at less than the price fixed by the exchange.

The organization was a carefully-devised scheme to prevent competition in the price of coal among the retail dealers, and the moral and material power of the combination afforded a reasonable guaranty that others would not engage in the business in Lockport except in conformity with the rules of the exchange.

The cases of Hooker v. Vandewater, 4 Den., 349, and Stanton v. Allen, 5 id., 434, are, we think, decisive authorities in support of the judgment in this case. They were cases of combinations between transportation lines on the canals to maintain rates for the carriage of goods and passengers, and the'court, in those cases, held that the agreements were void, on the ground that they were agreements to prevent competition, and the doctrine was affirmed that agreements having that purpose, made between independent lines of transportation, were, in law, agreements injurious to trade. In those cases it was not shown that the rates fixed were excessive. In the case in 5th Denio, the judge delivering the •opinion referred to the effect of the agreement upon the public revenue from the canals. This was an added circumstance, tending to show the injury which might result from agreements to 'raise prices or prevent competition. See, also, People v. Fisher, 14 Wend., 10; Arnot v. P. & E. Coal Co., 68 N. Y., 558.

The gravemen of the offense of conspiracy is the combination. Agreements to prevent competition in trade are in contemplation of law injurious to trade, because they are liable to be injuriously used. The present case may be used as an illustration. The price of coal now fixed by the exchange may be reasonable in view of the interests both of dealers and consumers, but the organization may not always be guided by the principle of absolute justice. There are some limitations in the constitution of the exchange, but these may be changed and the price of coal maybe unreasonably advanced. It is manifest that the exchange is acting in sympathy with the producers and shippers of coal. Some of the shippers were present when the plan of organization was considered, and it was indicated on the trial that the producers had a similar organization between themselves.

If agreements and combinations to prevent competition in prices are or may be hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon actual proof of public prejudice or injury, it would be very difficult in any case to establish the invalidity, although the moral evidence might be very -convincing.

We are of opinion that the principle upon'which the case was submitted to the jury is sanctioned by the decisions in this state, and that the jury were properly instructed that if the purpose of the agreement was to prevent competition in the price of coal between the retail dealers, it was illegal and justified the conviction of the defendants.

There is a single remaining question. The trial judge was requested by the defendants’ counsel, in substance, to charge that the overt act required to be proved to sustain a conviction for conspiracy must be one which might injuriously affect the public, and that the act of the defendants in raising the price of coal was of itself not such an overt act as was required. The request was, we think, properly refused.

The offense of conspiracy was complete at common law on proof of the unlawful agreement. It was not necessary to allege or prove any overt act in pursuance of the agreement. 3 Ch. Cr. Laws, 142; “O'Connell v. Reg, 11 Cl. & Fin., 155. In this state this rule of the common law was changed by the Revised Statutes, and with certain exceptions it was provided that no agreement should be deemed a conspiracy “ unless some act beside such agreement be done to effect the object thereof by one or more of the parties to such agreement.” 2 Rev. St., 692, § 10. And this principle was re-enacted in the Penal Code, § 171.

The object of the statute was to require something more than a mere agreement to constitute a criminal conspiracy. There must be some act in pursuance thereof and done to effect its object, before the crime was consummated. A mere agreement, followed by no act, is insufficient.

The overt act charged in the indictment and proved, was the raising of the price of coal.' The raising of the price of coal by a dealer unconnected with any conspiracy is not unlawful, but if ■there is a conspiracy to regulate the price, and that conspiracy is unlawful, then raising the price is an act done to effect its object, whether the price fixed is reasonable or excessive. The object of the statute is accomplished when it is shown that the parties have proceeded to act upon the agreement and done anything towards effecting its object.

ffe think there is no error in the record and the conviction should, therefore, be affirmed.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    William Moore, Resp’t, v. Simeon Brown, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    Mutes—Title—Ejectment.
    Chapter 411 of the Laws of 1890, giving the discoverer of any mines upon state lands the right to file a notice and work such mine, merely gives such discoverers the right or privilege to take out the minerals and ■retain the benefits which may accrue from marketing the product; and a resolution of the commissioners of the state land office consenting to their working such mine does not grant any estate in the property which would sustain an action of ejectment against one who was upon the lands and working the mine.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment of non-suit directed by the court at circuit, at the close of the whole testimony upon the trial before a jury.

      J. W. Houghton, for app’lt; Richard L. Hand, for resp’t.

       Reversing 41 St. Rep., 847.

   Gray, J.

This was an action of ejectment brought to recover the possession of a certain mine of garnet in the town of Minerva, in the county of Essex, and the main question is whether the: plaintiff had such a legal title, or such an estate in the premises, as1would authorize the maintenance of such an action. At the trial his complaint was dismissed, and that was one of the grounds upon which the motion for non-suit proceeded.

He was the grantee of the interests of Wood and Shields, who-were the discoverers of the garnet deposit. They had filed and established their claim as such discoverers, and thereupon the commissioners of the land office of this state passed a resolution to the following effect: “Resolved, that......consent is hereby given to Messrs. Wood and Shields, their successors and assigns, to-work the mine or deposit of garnet and other minerals in connection therewith.”

The provisions of the statute under which their proceedings; were had and this consent was given are contained in chapter 411 of the Laws of 1.890, and read as follows, viz.:

“ Section 1. All mines and all minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of this state, are and shall be the property of the people, subject to the provisions hereinafter made to encourage the discovery thereof. Any citizen of this state who shall have discovered, or who may hereafter discover, any valuable mine or mineral upon said lands, and shall file the notice in this title required, shall be entitled to work such mine, and he and his heirs and assigns-shall have the sole benefit of all products therefrom, upon payment into the state treasury of a royalty of two per centum of the market value of such products. * * *
“ § 2. Nothing contained in this title shall * * * be construed to give any person a right to enter on or break up-the lands of any other person, or of the people of the state, or to work any mine in such lands, unless the consent in writing of the owner thereof, or of the commissioners of the land office, where-the lands belong to the people of this state, shall be previously-obtained. ”

It seems that before the proceedings were taken which resulted' in the passage of the above resolution Wood and Shields had supposed the mineral deposit to be upon the land of a private individual named Martin Conners, and, having obtained from him the right, were engaged in mining it. While so engaged, they made a contract with this defendant, purporting to sell to him certain mining rights in the property. When they ascertained that the mine was on state lands, and after they had obtained from the land office commissioners the consent above mentioned, Wood and Shields then made the grant of their interests to the plaintiff. The defendant, however, claiming somehow under his previous contract with Wood and Shields, was upon the lands and working the mine, and the plaintiff brought this action to eject him.

Unless by the force of the statutory provisions and the resolution of the land office commissioners his grantors had acquired either a legal title to the premises described, or, what would be ■equivalent, were the grantees of the mine, or minerals in the land, an action of ejectment was not maintainable. What resulted from the action of the commissioners was a contract between the state and Wood and Shields which invested them "with certain exclusive rights, to be enjoyed and exercised upon the property of the state; "but, as I read the statute, that contract gave them no legal estate in the premises, nor operated, in any way, as a grant of the miner.als in the land. It amounted to a grant of a privilege to enter upon the state lands and to work the mine upon them and to possess only the products. It is hard to see how the terms employed by the legislature can be held to express any intention to grant .any estate in lands or minerals. It is plain from the statute in question that the title to all mines and all minerals upon the lands of the state is reserved to the people. They “ are and shall be the property of the people ” the act explicitly declares; but, to promote their discovery, it is provided that any citizen who discovers them “ shall be entitled to work the mine, and he and his heirs and assigns shall have the sole benefit of all products thereirom,” upon making payment of royalty upon their market value. What is there in the language of this enactment which entitles the •discoverer of a mine upon state lands to anything more than the mere right or privilege to take out the minerals and to retain the benefits which may accrue from marketing the product ? And how can we imply from the action of the land office commissioners anything like a grant of any estate in the property, when they formally grant merely a consent to work the mine? To construe such a grant we should have not merely to strain unnaturally the words of the statute, but we should have to imply an estate in lands against the express reservation of the property in the mines and minerals to the people. That neither can nor •should be done.

The words of the statute are not ambiguous and they do not ■conceal the intention of the framers. It is quite unnecessary, for any purpose, to give to them any other meaning or force than that which consists with the very clear purpose on the part of the legislature to grant only a" right or privilege, and to part with the title of the state only with respect to minerals which are extracted and marketed by the miner. In this view, we are supported by an opinion of the king’s bench, delivered by Chief Justice Abbott in a case I have been able to find and which seems very much in point. I refer to Doe v. Wood, 2 Barnw. & Ald., 724. That was an action of ejectment, where plaintiff claimed under a formal indenture granting the right to search for, dig, work and mine tin •ore and all other minerals in the grantor's land and to raise and make merchantable and dispose of the same, to the grantee’s own use. This was held to operate as a license merely; where the grantee had no grant of the ores and metals in the land and “ had a right of property only as to such part thereof as, under the liberties granted, should be dug and got,” and that the grantee “had no estate or property in the land itself, or any particular portion thereof, or in any part of the ore ungot therein.” It was held that the grantee’s right was “ very different from a grant or devise of the mines or metals or minerals in the land ” and that an action of ejectment was not maintainable.

I am not aware that there is any case in this state much in point; but reasoning upon the language used by the legislature and upon the description of the rights which shall be accorded to a discoverer, I see no other conclusion possible than that what he obtains from the state is the grant of a mere right, or incorporeal privilege, to take out the mineral found within the land of the state, and to have, as his own, only what is so taken out. The act secures to him a right, in that respect, exclusive as to all the world and of a duration measured by the existence of the mineral deposit and by his compliance with conditions expressed and implied. Such rights are fully cognizable in courts of equity, and resort to them, for purposes of protection against any infringement of those rights, could not fail of accomplishing all that is requisite. As the plaintiff had no estate in the land, or in the mine upon the land, he could not maintain ejectment against the defendant, and, for that reason, his complaint was properly dismissed.

The order of the general term should be reversed and the judgment entered at the circuit should be affirmed, with costs at the general term and in this court.

All concur, except Earl, J. not voting.


author: Mayham, P. J.

text:
    Martha C. Durfee, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      File September 15, 1893.)

    1. Railroad—Negligence.
    Plaintiff, while a passenger on defendant’s road, was injured, and her evidence tended to show that she was thrown to the ground while attempting to alight by reason of the car being started before she could free hersfelf from it; while defendant’s evidence tended to prove that she alighted from the car and was entirely separate from it before the car started. Held, that there was such a conflict of evidence as to the cause of injury as to make it a proper question to be determined by the jury.
    2. Same—Liability eob acts of lessee.
    Where a railroad company, without legislative authority, leases its road to individuals, the lessees are to be regarded as its agents as between it and the public, and it remains liable for injuries caused by the negligence of such lessees in operating the road.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff at the Fulton county circuit.

      Anibal & Murray (R. P. Anibal, of counsel), for app’lt; J. M. & H. Dudley (J. A. Dennison, of counsel), for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiff against the defendant for an alleged injury claimed to have been suffered by the plaintiff by reason óf defendant’s alleged negligence in the management of its cars by which plaintiff was injured. The complaint alleges that the defendant was a domestic corporation, owning and operating a horse railroad for the carriage of passengers and freight between the villages of Johnstown and Gloversville in the county of Fulton; that the plaintiff at the time of the alleged injury was a passenger on the cars of the defendant, and had paid the usual fees and charges for transportation, and that while she was such passenger, by the carelessness and negligence of the defendant, its servants and agents without any negligence on her part, she was severely injured. The answer admits that the defendant was a domestic corporation, with the corporate name of Johnstown, Gloversville & Kingsboro Horse Railroad Company, and the owner of the horse railroad between the villages of Johnstown and Gloversville.

The answer, for a second answer or defense, alleges that the horse railroad owned by the defendant was, at the time of the commencement of the action, and for more than three years prior thereto had been operated, managed and controlled solely by Henry Stoller and Michael R. Van Siclder as lessees, who for that time had been operating, managing, controlling and using "said horse railroad for carrying passengers, and that said lessees were solely and exclusively liable for all damages by their negligence, or the negligence of their servants or agents in operating said Johnstown & Gloversville railroad.

The defendant alleged in its answer contributory negligence on the part of the plaintiff tending to produce the injury.

On the trial, the plaintiff introduced evidence tending to show that she was injured by being thrown to the ground while attempting to alight from the cars of the defendants by reason of the car being started before she had sufficient time to free herself from it, and several witnesses were examined as to the circumstances under which the alleged injury was inflicted and tending to support that theory.

On the part of the defendant there was evidence which the defendant claims tended to prove, and did prove, that the plaintiff alighted from,the car, and was entirely separate from it before the car was started, and that contention seems to be supported by the testimony of several witnesses.

There was, therefore, such a clear conflict of evidence upon the subject of the cause of the injury as to make it a proper question to be submitted to, and passed upon, by the jury, and the jury having, under proper instructions from the court, passed upon that question and found in favor of the plaintiff their verdict should be upheld, unless it should be found to be unsupported by the evidence, or against clear and decided preponderance of evidence in favor of the defendant.

We think the evidence sufficient to support the verdict, and whatever conclusion the court might reach upon this evidence as an original proposition we do not feel authorized to set aside the verdict as against the evidence.

, The remaining question is whether the defendant, by its lease to Stoller and Van Sickler, can relieve itself from obligation to the traveling public for injuries inflicted by the negligent management of its railroad.

The case does not disclose that this railroad was leased with eonsent of or by any authority conferred upon it by the legislature, and the lease was not executed to a railroad company.

The law seems well settled that a railroad company cannot lease its road and franchise to an individual without the consent of the legislature so as to relieve it from its obligation to the public, and when a lease is effected to an individual the law seems to treat the lessee as the agent of the railroad company for the purpose of determining controversies between the public and such •company. Abbott v. Johnstown, Gloversville & Kingsboro R. R. Co., 80 N. Y., 27; Fisher v. Metropolitan Elevated R. Co., 34 Hun, 433; Woodruff v. Erie Railway Co. and Jewett as Receiver, 25 id., 246.

From the authorities it would seem to follow that if the plaintiff was injured by the operation of the railroad cars, or by the negligence of the person managing the same, although such person was •employed by the lessee, still their negligence would, in law. be the negligence of the railroad company, and for injuries resulting from such negligence the railroad company is liable. The railroad company, a corporation organized under general laws, having leased its road without legislative authority, remained liable for injuries caused by the negligence of those operating the road.

This doctrine is not in conflict with the doctrine laid down in Woodruff v. Erie Railroad Company. In that case the controverted question did not arise between the public and the railroad company, but was a dispute between the railroad company and the lessee, and the court held that in such a controversy the parties to the lease were estopped as against each other from denying the validity of their contract.

In Beveridge y. New York Elevated R. R. Co., 112 N. Y., 1; 20 St. Rep., 962, the question did not arise between the public and the railroad company, on a lease between it and an individual, but in that case one railroad company leased to another, as under the statute they may legally do.

The jury having passed upon the question of the negligence of the defendant’s agent and the question of the freedom of negligence on the part of the plaintiff, and no exceptions being urged here to the ruling of the judge, either in admitting or rejecting evidence or to his charge, we see no valid reason for reversing this judgment.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Merwin, J.

text:
    Mary A. Tinker, App’lt, v. The New York, Ontario & Western Railroad Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed Sept. 23, 1893.)

    1. Negligence—Railroad.
    In an action against a railroad company for damages for personal injuries caused by plaintiff’s horse running away and throwing her out of the carriage, the complaint alleged that the horse was frightened hy two sticks of timber negligently left by defendant in a ditch along its fence near the highway. It appeared that the sticks were placed in the ditch by defendant’s employes, and were about ten feet long and twelve inches square, weather beaten and dark colo; ed. Held, that a nonsuit was improperly granted, as the questions whether the timber in question, as situated, was calculated to frighten horses of ordinary gentleness, and whether there was a necessity for their deposit, were questions of fact for the jury.
    3. Same.
    In such case, the timber in question was taken out of the company’s crossing in making repairs, and first laid on the side of the highway, beside the track, and then removed by direction of one of the company’s ■section men, a brother of the foreman, who was present, he saying he wanted them for wood, to the ditch where they were when the accident occurred. Held, that it could not be said as a matter of law that the employes of the company were not engaged in their master’s business, or within the scope of their employment, when they removed the timber to the ditch.
    Appeal from a judgment dismissing the complaint of the plaintiff, entered in Chenango county on the 23d September, 1891, ■upon a non-suit granted at the Chenango circuit.

      George W. Ray and George P. Pudney, for app’lt; Edward B. Thomas and Howard D. Newton, for resp’t.
   Merwin, J.

On the morning of September 6, 1890, the plaintiff, with her husband and two daughters, was riding in a two-horse carriage along a highway that ran nearly east and west and that the railroad of the defendant intersected at about right angles at a point called Nearing crossing about one mile south of the station at Smyrna. As they proceeded westerly across the railroad track at this crossing and just after they crossed it, the team became frightened and suddenly turned to the left, running one wheel of the carriage up on the bank at that point and operating to raise one side of the carriage to such an extent that the plaintiff was thrown out on to the road. By the fall she received a somewhat serious injury and this action is brought to recover ■damages arising from such injury. Her claim is that the horses were frightened by two sticks of timber that lay in the ditch on the right hand or northerly side of the street, and that the sticks were placed there by the defendant wrongfully and negligently and were of such a character as likely to frighten horses of ordinary gentleness. The defendant claims that the timbers were not placed there by it or by its servants in the course of its business, and that if they were, still the defendant was the owner of the land where they lay and the act was not a negligent one, and therefore the defendant was not liable.

In reviewing a judgment entered upon a non-suit, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given and to every legitimate inference warranted by the proofs. McNally v. Phenix Ins. Co., 137 N. Y., 389; 50 St. Rep., 680.

The timbers were each about ten feet long and twelve inches square, and were about twenty feet westerly of the railroad track and lay side by side in a ditch on the northerly side of the highway and about ten feet from the centre of the traveled part and about fifteen or twenty feet from the fence on the northerly side of the highway. The ditch where they lay was from one to two feet deep. They were weather beaten and dark colored, one witness saying, “ not necessarily black, not any more than ordinary weather beaten sticks of timber would be, * * * there might have been oil and engine grease on them,” and another witness says, “ they were dark colored, "pretty nearly black with oil and stuff on them, nearly black.”

The place where they lay was within the eighty feet taken by the defendant for the uses of its road, and at that point the defendant owned the fee of the eighty feet, subject of course to the highway. The timbers were placed where they were during the afternoon of September 4th by the employes of the defendant. Upon that day the section men of the defendant who had charge of the section that included this crossing took out the cattle guards upon each side of the crossing and put in new ones. The timbers taken out on the north side were put on the company’s side of the fence, that is, outside of the highway. The timbers on the south side of the crossing were taken out onto the highway, at first being laid on the south side of the highway, one on each side of the railroad track, and near to it, and then, after the cattle guard was fixed so that trains could pass over, they were removed by the section men to the place where they were at the time of the plaintiff’s injury. This removal was by the direction of one of the section men, a brother of the foreman, who said he wanted them for wood. They remained there until the second day after the accident, when they were thrown over the fence onto the company’s land by the same section men, including the foreman, and there they remained until the summer following.

The first question that naturally arises is whether the defendant is responsible for the timbers being placed at the point where they were at the time of the accident. They were there on the company’s lands, and so in a measure at least in its custody. They were placed there by its employes, whose business it was apparently not only to properly fix the cattle guard, but to see that the refuse was properly disposed of. In Phila. S Read. R. R. Co. v. Derby, 14 How., U. S., 482, 486, it is said: “ The rule of respond-eat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment. ”

In Quinn v. Power, 87 N. Y., 537, the rule is said to be that the master is liable for the negligence or misfeasance of the servant while the latter is acting in the master’s business and within the scope of the servant’s employment, and a violation of the master’s instructions or a departure from the strict line of duty to him from the servant does not necessarily make the latter alone liable (p. 540). In Dwindle v. N. Y C & H. R. R. R. Co., 120 N. Y. 117, 124; 30 St. Rep., 578, which was an action to recover damages for the tortious act of the porter of the sleeping car, it is said that the question in such cases, whether the servant was engaged in the performance of his duties as a servant of the company, is for the determination of the jury. The case of Mulligan v. The Rockaway B. R. Co., 129 N. Y., 506; 42 St. Rep., 83, cited by defendant’s counsel, is materially different from the case in hand. In Pittsburgh, F.W. & C. Railway Co. v. Maurer, 21 Ohio State, 421, the question whether the servant was in the course of his employment was left to the jury. In Dells v. Stollenwerk, 78 Wis., 339, the acts of the servants were after they had quit work for the day.

In the present case it should not, we think, be said as matter of law that the employes of the company were not then engaged in their master’s business and within the scope of their employment. The foreman then in charge represented there the company and the timbers were left on the side of the road with his assent, as it might be found, or by his direction, while they all were engaged in the master’s business. They remained on the company’s land, and the knowledge of the foreman that they were so left was imputable to the company. If so, the question of notice thereafter to the company was not important. Wilson v. City of Troy, 135 N. Y., 102; 48 St. Rep., 364; Dunsbach v. Hollister, 49 Hun, 352; 17 St. Rep., 46; affirmed 132 N. Y., 602; 44 St. Rep., 934.

Assuming; then, that the defendant may be chargeable with the situation of the timbers, we then come to the question as to what responsibilities might arise therefrom.

An object in a public street which is of such a form or character that it is calculated to frighten horses of ordinary gentleness is an obstruction in the nature of a nuisance, and any one who so places or maintains it is ordinarily liable for the consequences liable to arise. Stewart v. Porter Mfg. Co., 13 St. Rep., 220; Eggleston v. Columbia Turnpike Road, 18 Hun, 148, and cases cited ; Wood on Nuisances, §§ 295, 297; 1 Thomp. on Neg., 349 ; Wharton on Neg., § 983.

Whether or not the timbers in question, by reason of their form and character, their situation near the travelled part of the highway and partially concealed in the ditch, were calculated to> frighten horses of ordinary gentleness was, we think, a question, for the jury. It was a matter for inference in regard to which there was room for fair difference of opinion among intelligent men. Wolfkiel v. R. R. Co., 38 N. Y., 49. In a note to Morse v. Richmond, 41 Vt., 435, 446, Judge Redfield says: “ The case of Chamberlain v. Enfield, 43 N. H., 356, seems to us to place the question upon its true basis, that it must be regarded as a question of fact for the jury whether an object outside of the travelled portion of the highway is a defect or obstruction to its safe use, by reason of its liability to frighten horses. There is no valid reason apparent to us why this question may not as safely be intrusted to juries under proper limitations, to be defined and fixed by courts, as any other questions of fact arising in this class of oases.” The testimony shows that the horses were in fact frightened by the timbers, and the question whether they were ordinarily gentle was a question of fact.. There was evidence tend- " ing to show that they were.

But the defendant claims that, assuming the timbers were placed where they were by its employes in, the course of their employment, it was done while they were properly engaged in the repair of the cattle guards, and they had a right to temporarily deposit the sticks there. That, however, depends upon whether there was a reasonable necessity for such deposit, and that was a question of fact. Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21. In Flynn v. Taylor, 127 N. Y., 596 ; 40 St. Rep., 187, it is said, the construction must be reasonably necessary for the transaction of business, and it must not unreasonably interfere with the rights of the public, and whether a particular use of a street is an unwarrantable use or not is a question of fact depending on all the circumstances of the case.

The fact that the defendant was the owner -of the fee does not relieve it from liability, if the use was not reasonable and necessary. Dygert v. Schenck, 23 Wend., 446; Babbage v. Powers, 130 N. Y., 281; 41 St. Rep., 521; 3 Wood on Nuisances, § 297. Even if the deposit in the street was reasonably necessary, a question might arise whether the defendant -in the exercise of its right was negligent. See Piollet v. Simmers, 106 Pa., 105.

The foregoing considerations lead, to the conclusion that the case should have beer! submitted to the jury, and that the non-suit was improperly granted.

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

Hardin, P. J., concurs.


text:
    Thomas O’Brien, Resp’t, v. David V. McCarthy et al., Executors, Impl’d, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Mechanic’s men—Fokeclosube—Application oe payments on oonTBACTS OF ADJOINING OWNEBS.
    In an action for the foreclosure of a mechanic’s lien, it appeared that defendant F. and one O., since deceased, were the owners of adjoining lots, and that plaintiff by separate contracts with each agreed to erect a block on said lots, 'the payments to be made on estimates of the architect as the work progressed. The buildings were constructed pursuant to a single plan by one architect. The architect, as the work progressed, made estimates on the work in bulk without reference to the work performed on either part, the estimates were reported to O., and he made payments thereon to plaintiff to the amount of $3,000, the last being December 21, 1889. O. died December 26, 1889, and in October, 1890, plaintiff filed, the lien on F.’s part for a balance due on his contract. In the notice it was stated that F. claimed that he should be credited with half the amount paid by O. Statements were shown to have been made by O. that he intended to foot the bills himself, F. being his nephew. The amount paid by O. was more than due on his contract,.and plaintiff applied half to each contract. Held, that a finding, that O. intended to have his payments applied on F.’s contract equally with his own was proper.
    2. Same.
    Such action, as to the payments by O., was in the nature of an inter¡pleáder, and was properly disposed-of in the action to .foreclose the-lien.

      Appeal from that part of a judgment entered in Onondaga county on 28th April, 1892, which adjudges that, of the sum of $3,000 paid by James O’Hara in his life time to the plaintiff, $1,500 was properly applied by plaintiff on a contract between him and the defendant William O. E'iske.
    The action is for the foreclosure of a mechanic’s lien, and was tried before a referee and his findings and report were confirmed by the court and judgment entered as above indicated:

      Louis Marshall, for app’lts; C. G. Baldwin, for resp’t.
   Merwin, J.

On the 21st August, 1889, the defendant, William 0. Fiske, being the owner of a lot on Madison street in the city of Syracuse, made a contract with the plaintiff, by which the plaintiff agreed to perform certain kinds of work and furnish the materials therefor, in the erection of a building or block on said lot. The consideration was $6,200.16 and payments were to be made eighty-five cents on the dollar on estimates of the architect as the work progressed. James A. O’Hara owned a lot adjoining Fiske’s on the same street, and he at the same date made a similar contract with plaintiff, the consideration being $5,498.84 and payable in the same way. These buildings, forming together a single block, were constructed pursuant to a common or single plan, the respective portions being substantially alike, excepting a slight difference in the shape and size of the lots. The specifications for the whole were made by the architect, Mr. Carroll, as a single plan and in pursuance of a common design by the said O’Hara and Fiske to erect an uniform and similar building, and the block was connected by partition walls under the same plans and specifications and was erected at the same time and by the same parties as builders and contractors. The plaintiff in pursuance of his contracts went on and furnished labor and materials, the work upon each part going on simultaneously, and the architect from time to time made estimates upon the work in bulk without reference to the work performed on either part. These estimates, were reported to O’Hara and he made payments thereon to plaintiff to the amount of $3,000, the last payment being December 21, 1889. O’Hara died on 26th December, 1889. On the 24th October, 1890, the plaintiff filed a notice of mechanic’s lien on Fiske’s part of the real estate for a balance due on Fiske’s contract, and in this notice it was stated that Fiske claimed that he should be credited with $1,500 of the amount paid by O’Hara.. This action to foreclose such lien was commenced November 21, 1890, and in the complaint the claim of E'iske as to these payments is stated. It is also stated that the executors of O’Hara are made parties in order to determine whether payments should be applied as claimed by Fiske. The referee found that $1,500 of the amount paid by O’Hara was paid by him on Fiske’s contract and was so received and credited by plaintiff, and that this money was furnished to and paid for Fiske by O’Hara.

The appellants claim that this action cannot be maintained in equity to determine whether or not this money was or should be applied on Fiske’s debt, on the grounds that the appellants would thereby be deprived of the right of trial by jury, and the plaintiff has an adequate remedy at law.

The appellants in their answer do not allege that there is an adequate remedy at law, and they are not therefore in a position to raise the question. Town of Mentz v. Cook, 108 N. Y., 508; 13 St. Rep., 843. Besides, they claim in their prayer for relief that this very question as to applicability of the payments be adjudicated upon. ¡No question as to their right of trial by jury was raised until after the trial was entered upon and a witness for plaintiff sworn and examined. By this delay, the defendants waived their right to a jury trial if they had any such right. Kenney v. Apgar, 93 N. Y., 539. The action as to the payments in controversy was in the nature of an interpleader, and I see no good reason why it could not properly be disposed of in the present action.

The appellants further claim that the finding of the referee, that O’Hara intended to have his payments to the extent of $1,500 apply on Fiske’s contract, and that they were so made by O’Hara and received by plaintiff is not sustained by the evidence.

The payments, aggregating $3,000, were five in number. There is evidence tending to show that each payment followed and was based upon an estimate of the architect made upon the work under the two contracts as a whole, and that each payment was the amount that the plaintiff was entitled to at that time on the whole work. Statements are shown to have been made by O’Hara that he intended to foot the bills himself, that he was paying the bills on the block until such time as Fiske could make a loan. Fiske appears to have made no payments before O’Hara’s death. The work upon the two parts went on together; there was but one architect, and he was employed by O’Hara. There was but one plan, and the separation of the contracts was treated as matter of form. Fiske was the nephew of O’Hara, and there is evidence that O’Hara said he was going to assist his nephew in building the block. It is not likely that O’Hara intended to pay more than was due on his own contract, and yet this apparently is what he did if the appellants’ theory is correct. The plaintiff, in receiving an amount equal to what was due on both contracts as a whole upon an estimate on the whole, had a right to believe that he was only receiving what was due him and that he had a right to apply, as he testifies he did apply, one-half on each contract. Presumptively, upon the evidence, the work under each contract was substantially equal.'

The evidence, I think, authorizes the conclusion that O’Hara intended to have his payments apply on Fisk’s contract equally with bis own, and that, in effect, they were so made by O’Hara and received by plaintiff. It would follow that the conclusion of the referee should not be disturbed.

Judgment affirmed, with costs.

Hardin, P. J., and Parker, J., concur.


text:
    Betsey Revoir, Resp’t, v. Florence A. Barton et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Foreclosure—Effect of agreement to finish building.
    Where a contract of sale provides that the building on the premises in. question shall be completed upon a certain date, and thereafter, and before such date, the purchaser accepts a deed of the property, assumes a mortgage thereon, pays $1,000, and gives a bond and mortgage for the balance of the purchase price, Feld, in an action to foreclose the second mortgage, that the seller’s right to foreclose was not dependent on the fulfillment of her agreement to complete the building.
    2. Same—Bar.
    In such case, the pendency of an action to foreclose the first mortgage is no bar to the bringing of the action.
    Appeal from a judgment entered in Onondaga county on the 6th March, 1893.
    The action is for the foreclosure of a mortgage dated October 20, 1890, given by the defendants to the plaintiff to secure the payment of the sum of $4,250, payable $1,000 one year from the date thereof, and $1,000 each and every year thereafter until the principal was fully paid, with interest, from January 1, 1891, payable annually on all sums remaining unpaid. It also contained a provision that if any payment remained in arrear for ninety days, the whole principal should become due at the option of the mortgagee. There was a bond accompanying the mortgage. The judgment appealed from is the ordinary judgment of foreclosure and sale.

      Costello & Welch, for app’lts; Knapp, Nottingham & Andrews, for resp’t.
   Merwin, J.

On the 14th October, 1890, the plaintiff was the owner of the premises described in the complaint, upon which there was a mortgage to the Syracuse Savings Bank for $4,750. At that date she and the defendants entered into a written agreement by which the plaintiff agreed to sell and convey the said premises to the defendants for the price of $10,000. For payment of this sum the defendants were to assume the mortgage of $4,750, pay the sum of $1,000 on the delivery of a good and sufficient warranty deed accompanied by an abstract of title showing the premises free and clear of all incumbrances except the bank mortgage, and for the balance of $4,250 give their bond and mortgage on the premises, payable as follows : One thousand dollars in one year from the date of the deed, with interest on the whole principal from January 1, 1891, and the balance of the principal in like payments annually thereafter with interest on all unpaid sums. By the said agreement the plaintiff also agreed “that the building now erected on said premises shall be completed on or before January 1, 1891, or at least the interior of said building shall be suitable for occupancy by said second parties at that time,” and the manner in which the building should be completed was particularly specified, and it was to be done by the plaintiff at her own expense and as a part of the price named. The contract also provided that in case either party failed to perform any of the covenants therein contained on their part to be performed “.the party or. parties so failing shall-pay on;demand to the other-party or parties the sum of five hundred dollars ($500), which is hereby fixed and agreed upon as the ascertained and liquidated damage for such failure, being in lieu of performing- their part-, and shall in no event be considered a penalty."

In accordance with and pursuant to. said contract the deed of said premises was duly delivered by plaintiff to the defendants on October 20, 1890, and concurrent therewith they paid to the plaintiff the sum of $1,000, and executed and delivered the bond, and mortgage described in the complaint.

On December 15, 1891, the. Savings bank commenced in this-court an action to foreclose its mortgage, in which action the plaintiff and the defendants were made parties defendants. The complaint in that case- after setting out the bond and mortgage, the-conveyance by Mrs. Bevoir to the Bartons and the assumption-by them of the bank mortgage and the default in payment, alleged, upon information and belief, that Mrs. Bevoir was the owner and holder of a mortgage, then describing the one involved in the-present action, and that such mortgage was a subsequent lien to the bank mortgage. The ordinary judgment in foreclosure was;' demanded. In that action-Mrs. Bevoir appeared on the 22d December, 1891, but never answered. On the 25th March, 1892,, the defendants Barton put in separate answers, setting forth that' the mortgage of Mrs. Bevoir was not a valid- mortgage, but was void by reason of'said Bevoir not completing the-house according to the contract. They also set up what purported to be a defense to-' the bank action, and demanded judgment that the complaint be dismissed and the mortgage of Mrs. Bevoir be cancelled of record. These answers were served on the attorneys for the plaintiff- in that action and on Mrs. Bevoir. and her attorney in due time. At the time of the service of these answers, the time of Mrs. Revoii;. to answer in the action had expired and she was in default. The-present action was commenced on August 11, 1893, and the bank action was then pending, and was also at the time defendants am swcrcd in the present case.

It is claimed by the appellants that the pendency of the bank action is a bar to the present action. We think not. The bank had no interest in the question whether the mortgage to Mrs. Bevoir was.valid. That issue was foreign to the foreclosure and did not at all affect the claim of the bank. The complaint- only ah . leged in regard.to it what appeared from the record and no relief, as to it was asked. As said by Judge Mon ell in the case of Fink v. Allen, 36 Superior Court, 4 J. & S., 350, 359, which, was. a case somewhat similar to this: “ A defendant cannot be compelled to litigate under such circumstances ; .and if he refuses to-do so, he will not be estopped or debarred of his cause of action, or defense.” In Kay v. Whittaker, 44 N. Y., 565, it was held , that, under the provisions of § 274 of Code of Procedure, which, in this respect, does not-materially vary from the provisions o£. the present Code, the relief', which defendants may hay.e, am against each other,..must be, based upon, the facts involved- in, the-.. litigation of the plaintiff’s claim, and as a part of the adjustment of that claim, and not upon claims with which the plaintiff has nothing to do, and which are properly the subject of an independent litigation between such defendants.” A similar view was taken in Lansing v. Hadsall, 26 Hun, 619, and by this court in Mutual Life Lns. Co. v. Cranwell et al., 10 N. Y. Supp., 404; 32 St. Rep., 376.

A further question is raised by appellants as to the effect of npn-performance by plaintiff of the agreement to finish the house.

It appears from the contract between the parties that at the time the contract was made the building had been erected but not completed, and the plaintiff as a part of the consideration of the sale agreed to complete it in a specified manner. The time for final completion is by the contract somewhat indefinite. At the trial the defendants, as matter of defense, offered to show that the house was not completed according to the specifications of the contract. This was held not to be admissible, as no defense by way of offset or counterclaim was alleged. The claim of the appellants is that the right of plaintiff to enforce her bond and mortgage is dependent upon her performance of her agreement to complete the house and that, therefore, if she failed in that regard such failure is a bar to her action to foreclose.

In the answer under which this evidence was offered it was in substance alleged that the plaintiff had failed to perform her agreement as to the completion of the house and that, therefore, the bond and mortgage were null and void. The damages to defendants by reason of such failure were not claimed or alleged»The only judgment asked for was a dismissal of the complaint.

Is the position of defendants correct, that the right of plaintiff to enforce her bond and mortgage is dependent upon her performance of her agreement to complete the house? No such condition appears in the bond and mortgage or in the contract There seems to have been an absolute delivery of the deed and-the bond and mortgage on the 20th October, 1890. There was an unconditional acceptance on both sides and the defendants paid the $1,000, thereby with the bond and mortgage fully performing on their- part. The defendants are hardly in a position to say that an act to be done after that is a condition precedent to the thing already performed. Merchant v. Lawson, Clarke Ch., 129; DeKay v. Bliss, 120 N. Y., 91; 30 St. Rep., 820. The defendants still retain the title and do not offer to restore that to the plaintiff. They have no right to rescind the bond and mortgage because of the failure of plaintiff to fully perform her covenant to complete the house. As said in the DeKay case, the partial failure of consideration resulting from the breach furnished no ground to disaffirm the executed provisions of the contract, the defendants’ remedy was to recover damages for the non performance. The DeKay case substantially disposes of the question adverse to defendants. The. cases cited by appellants as to the right of a party to recover a balance upon a building contract do not, I think, apply here.-

It follows that the court did not err in rejecting the offered evidence. There are no other questions that need be particularly considered. No error is apparent that calls for a reversal.

Judgment affirmed, with costs.

Hardin, P. J., and Parker, J., concur.


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    Nellie E. Yale, Resp’t, v. William R. Curtiss, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Breach of promise—Contract—No formal words necessary.
    No formal language is necessary to constitute the contract to marry, the meaning and intention of the parties may be inferred by their conduct and declarations.
    3. Same—What evidence sufficient to sustain action.
    In an action for breach of promise to marry it appeared from plaintiff’s evidence that defendant sought and obtained an introduction to plaintiff and thereafter for two years and upwards he frequently went home with her from church and prayer meeting and occasionally took her to entertainments, and often on' these occasions stopped at her home and visited with her until ten or eleven o’clock, or later, in the evening. Upon one of these occasions he referred to a trip to Europe, from which plaintiff might have inferred that the defendant was contemplating a trip to Europe with her as his wife. Upon other occasions he spoke of building a house and asked her what building lot she preferred; several times he said he hoped to make her happy, would always protect her and would be true, also that he did not believe in long engagements. During such time plaintiff did not receive attentions or visits from other young men. Defendant denied much of this evidence. Held, that a verdict for plaintiff should not be disturbed.
    3. Evidence—When striking out curbs admission of incompetent.
    If a court inadvertently, in the hurry or confusion of a trial at circuit, makes an error in receiving evidence, but before the witness leaves the stand recalls the ruling and strikes out the objection, there should not, in any ordinary case at least, bo any presumption of injury by reason of the erroneous ruling.
    4. Breach of promise—Evidence.
    In an action for breach of promise to marry it is not error to receive evidence of the mother of plaintiff that she knew of her daughter making preparations for getting married, at least on the question of damages.
    5. Same.
    So as to evidence of the condition in health of the plaintiff after the breach and in consequence thereof.
    6. Same.
    In such case, it is competent to ask plaintiff what was her occupation or business.
    Appeal from a judgment entered in Chenango county on April 30, 1890, upon a verdict at the Chenango circuit in favor of plaintiff for $3,000; also from an order denying a motion for a new trial made upon a case and exceptions.

      Edward B. Thomas and Howard D. Newton, for app’lt; George W. Ray, for resp’t.
   Merwin, J.

This action is brought to recover damages for a breach of promise of marriage alleged to have been made by the defendant to the plaintiff on or about the 15th May, 1888. Whether there was such a promise was the main issue at the trial. The finding upon that issue in favor of the plaintiff is challenged by the defendant upon the ground that the evidence was not sufficient to authorize it

There is no evidence that the defendant in so many words promised to marry the plaintiff. That, however, was not necessary. No formal language is necessary to constitute the contract to marry. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state. Homan v. Earle, 53 N. Y., 267, 272. The meaning and intention of the parties may be inferred from their acts and declarations. Id., 271.

Upon the part of the plaintiff it appears that in December, 1885, the defendant sought and obtained an introduction to the plaintiff, and at the first interview soon thereafter told her he had long been wishing to make her acquaintance. Thereafter, for a period of two years and upwards, he frequently went home with her from church or prayer meeting, and occasionally took her to public entertainments. In March or April, 1888, he went home with her nearly every Sunday from church, and nearly every Thursday evening from prayer meeting. Often on these occasions he stopped at her home and visited with her until ten or eleven o’clock in the evening, and sometimes later. The plaintiff usually entertained him alone in the parlor. Upon one of these occasions, in June or July, 1887, there was a conversation about a trip to Europe, from which the plaintiff omight have inferred, whether properly or not would be for the jury to say, that the defendant was contemplating a trip to Europe with the plaintiff as his wife. Upon one or more other occasions he spoke of building a house, and asked her what building lot she preferred. At an interview about the middle of May, 1888, the plaintiff told him she had overheard the remark that all he went with her for was to please himself, and see how big a fool he could make of her, and she asked him i£ that was true.

The defendant earnestly denied it, and, among other things, said he had admired her from the very first, that he had never met a young lady that he regarded more highly, and several times said he longed to make her happy. He also said he would always protect her. She told him the most she wanted to know was, if he was true, and he replied he had said all he could find language to express that he was true, and just before he left he said : “If I live I will make you happy.” Prior to this time he had several times told her he didn’t believe in long engagements. During the time the defendant was paying these attentions to the plaintiff she did not receive attentions or visits from other young men.

Upon the part of the defendant much of this evidence was denied, and other circumstances were shown from which it is argued by the counsel for the defendant that there was no promise to marry in substance or intent, and that plaintiff did not suppose or have any right to suppose that an engagement was made or offered.

We are of the opinion that a ease was presented such as was. proper to be sent to the jury for determination, and' that their conclusion on the subject should not be disturbed. It was for them to say whether or not there was in substance a promise to-marry. This depended upon inferences which it was the province of the jury to draw. It was for them to say whether the statements were made as claimed by plaintiff in May, 1888, and if so,then, in the light of the previous conduct and declarations off the parties, it was for them to say what was the meaning and! intention of the parties. That, as held in the Homan case, was-to be inferred from their acts and declarations. In that case, of a matter somewhat similar, it is said: “ What the parties intended by these acts and declarations) what is the correct translation of them, is for a jury and not a court; it is a question of fact and not of.law. They are capable of a construction tending-to corroborate the plaintiff’s evidence, that while he did not say in words that he would marry her; she had a right to expect he-meant;it. If he aid not mean that, what did he mean? It was for the jury to say.” In Button v. McCauley, 1 Abb. Dec., 282, it is said that a statement by defendant to plaintiff that he would make a good home for her tended to prove the alleged contract, of marriage.

Our attention is called to several exceptions to rulings upon the admission or rejection of evidence. We, however, do not find, in them any sufficient cause for reversal. The evidence of the. conversation as to the trip to Europe was proper. It related to the subject in controversy, and its bearing and effect were to be considered along with the other evidence in the case. The same may be.said as to the conversation about going to New York. After the plaintiff had narrated the conversation as to the trip to Europe, she was asked the question : “ Now, you may state how you understood "that at the time.” This was objected" to by the counsel for defendant as incompetent and improper and as a conclusion and opinion, and the objection was overruled and exception taken: The witness partially answered' when, on motion of defendant’s counsel, the answer so far as made was stricken put. The following then occurred: “ The court: What did you understand he meant by that ? A. I thought he meant that he wished me to accompany him when he went abroad. Q. As what ? A.. As his wife. Defendant’s counsel: I move to strike that out as, improper and incompetent, and as a conclusion and opinion. Thecourt: The motion is denied.” Exception was taken. Shortly after wards, before the direct examination of" the witness was closed, she was asked a similar question as to what she understood by the saying of the defendant, “I will always protect you.” This being bjected to, the court said: “I think, upon consideration, that the proper, rule is not to allow a party to testify how she understood it, but allow the fact to.be put in, and the jury to say what would' be the fair meaning of the phrase. I will strike out the evidence which was given before as to how she understood the expression, that she-was asked about which she testified to; I will exclude’ this.” The defendant objected and excepted to the striking out., of thesv-idence, as. he might lose the benefit of his previous excep tion. The error, if any, in receiving and refusing in the first instance to strike out the previous evidence was, we think, cured, within the rule laid down in Gall v Gall, 114 N. Y., 109; 22 St. Rep., 746, and approved in Holmes v. Moffat, 120 N. Y., 162; 30 St. Rep., 779. The court not only struck out the evidence, but in substance said to the jury it was for them and not for the witness to say what was the meaning of the phrase. If a court inadvertently, in the hurry or confusion of a trial at circuit, makes an error in receiving evidence, but before the witness leaves the stand recalls the ruling and strikes out the objectionable evidence, there should not, in any ordinary case at least, be any presumption of injury by reason of the erroneous ruling. It should rather be presumed that the jury disregarded the objectionable evidence, as they are presumed to disregard a great many other assertions in the course of a trial that are not evidence.

It was not error to receive the evidence of the mother of plaintiff that she knew her daughter was making preparations for getting married. Wilcox v. Green, 23 Barb., 639. The plaintiff had already testified to the same thing without objection. It was at least competent on the question of damages. And so was the evidence of the condition in health of the plaintiff after the breach .and in consequence thereof. The information which led the plaintiff to ask explanation of the defendant in May, 1888, was derived by plaintiff from her mother. It was not material from whom the mother received the information. Nor was the talk between her and her father or her counsel before the commencement of the suit. The plaintiff at the commencement of her evidence was asked the question: “ What is your business now, and how do you gain your livelihood?” This was objected to as incompetent and improper, and objection overruled and exception. The answer was, By giving music lessons.” It was proper to ask the witness what was her occupation or business. If the balance of the question ■called for improper evidence as to her property, that objection should have been specified, and not being so, is not available. Simson v. Chadwick, 20 W. Dig., 35 ; Hochrieter v. People, 2 Abb. Dec., 363. In Vanderpool v. Richardson, 52 Mich., 339, it was held proper for the plaintiff to show she had no property.

The defendant’s counsel also claims errors in the court refusing to charge certain requests. The record shows that, at the close of the charge, the defendant’s counsel requested the court to charge nine propositions, which are set out. At the end of these, the following appears. “ The court. I decline to charge the requests made by the defendant’s counsel other than I have charged. Defendant’s counsel excepted to the refusal of the court to charge as requested.” This exception is not sufficiently definite to be available, within the ruling in many cases. Smedis v. Brooklyn, etc., 88 N. Y., 14; Magee v. Badger, 34 id., 247. Many of the requests were in substance charged. Others referred to detached portions of the evidence and asked for a charge upon the effect of those alone. The court in its charge laid down the law of the case fully as favorably to the defendant as he was entitled to have it. In the refusals to charge we find no error prejudicial to the defendant.

The foregoing considerations lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

Hardin, R. J., concurs.


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    Joanna Fealy, Resp’t, v. John Bull, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Verdict—Against weight of evidence.
    M. was a tenant on H/s farm; by the agreement between them the title to all property produced was to remain in H. until the fulfillment of the contract; the contract was not fulfilled; butter was sold and a check therefor given M.; F., who resided on the farm and was M.'s sister-in-law, purchased the check three days after it was given and presented it at the bank; payment was refused at II.’s request, and F. brought suit. It appeared that F. knew that H. owned the farm, and that the check was given for butter produced ón it. H. testified that a few days before the butter was taken away he was at the farm-house and said in the presence of F. that the check for the price must bo payable to him. F. testified that she did not remember any such remark. Held, that a verdict for F. was against the weight of evidence and should be set aside.
    2. Bills and notes—Check purchased some days after made—What EFFECT AS TO EQUITIES. ,
    The fact that a person purchases a check three or four days after it was given, but before it was presented for payment, does not necessarily subject the purchaser to the equities existing against it as dishonored paper, but it is a circumstance to be considered in determining whether the purchaser acted in good faith and with due caution.
    Appeal from a judgment entered in Cortland county on January 20, 1892, upon a verdict of $254.56 in favor of plaintiff at the Cortland circuit. Also appeal from an order made at special term upon a case and exceptions, and entered in Cortland county on-15th December, 1892, denying a motion for á new trial and from the judgment entered thereon.
    Action to recover the amount of a check, dated November 23, 1888, drawn by defendant on the Tompkins County National Bank for the sum of $238.58, payable to the order of Patrick McCarthy, and indorsed and transferred by him to plaintiff.
    In the answer it is alleged that the consideration of the check was property that belonged to William W. Hare, sold to defendant by the agent of Hare, and that Hare is the owner and lawfully entitled to the check and its proceeds, and that defendant has paid Hare; that plaintiff is not the owner of the check, and that she received it with full knowledge that McCarthy was not the owner, and had no right to it or its proceeds.

      M. Van Cleef and J. H. Palmer, for app’lt; James Dougherty and J. E. Eggleston, for resp't.
   Merwin, J.

We find no exceptions in this case upon which a reversal can be properly based. The objection that plaintiff by reason of the payee’s death could not testify to the transaction between her and the payee at the time of the delivery to her of the check, under § 829 of the Code, came too late, even if tenable at all. The defendant claimed not under McCarthy but under Hare. The question to defendant, “ How did you first learn that the plaintiff claimed to own this check?” was properly excluded. At the close of the cáse a nonsuit was asked for on certain specific grounds which related to the effect of certain portions of the evidence. The motion was properly denied. No point is made as to the charge.

The main issue litigated at the trial was whether the plaintiff was the owner in good faith of the check. It is quite clear, and it does not seem to be denied, that as between Hare and McCarthy, Hare was the owner or entitled to receive the check. McCarthy was the tenant upon the farm and the check was given for butter produced upon the farm. By the agreement between Hare and McCarthy the title of all property raised or produced was to be and remain in Hare until the fulfillment of the contract. At the time the check was given the contract had not been fulfilled.

The.court charged that if the plaintiff, at or before the time she purchased the check, had knowledge of circumstances which ought to have put her upon inquiry as to the rightful ownership of the check by Mr. McCarthy, she could not recover. The jury in effect found that she was a purchaser in good faith for full value and without knowledge of circumstances which ought to have put her upon inquiry. The defendant claims that this finding is against the evidence.

The-plaintiff was the sister of the wife of the tenant, Mr. McCarthy, and she lived in his family from the June previous to the giving of the check. Mr. McCarthy was sick all the summer and died in December following. The plaintiff knew that Mr. Hare owned the farm and that the check was given for butter produced upon it. She testifies that she purchased the check three or four days after it was given. This, being before it was presented for payment, does not necessarily subject the purchaser to the equities existing against it as dishonored paper, but it is a circumstance to be considered in determining whether the purchaser acted in good faith and with due caution. 2 Parsons on Notes & Bills, 271.

The butter was sold and the check is dated November 23. On the 24th Mr. Hare was at the house of Mr. McCarthy and demanded the check of Mrs. McCarthy. The plaintiff testifies that she heard Mr. Hare ask for the check, but that she cannot tell the date and does not remember what was said. Mrs. McCarthy, a witness for plaintiff, testifies that at the request of her sister she presented the check at the bank for payment and that this was three or four days or a week after it was given. Payment was refused by the bank, as the defendant had previously at the request of Hare stopped payment on it.

Mr. Hare testifies that a few days before the butter was taken away he was at the house and said to Mrs. McCarthy, in the presence of plaintiff, that the check for the price must be payable to him. As to this the plaintiff testifies : “ I do not remember that Mr. Hare told Mrs. McCarthy that the check should be made payable to him nor anything of the kind. I will not say it did not occur, but I don’t remember. My memory is good.”

The McCarthy family were .in need of money,-as the plaintiff knew. She presumptively knew that if the check was good thejr could draw the money on it immediately, and that if the transaction was honest, there was no reason whatever for their waiting a single day, or for calling on plaintiff to advance the money. The plaintiff would receive no benefit, if not taken for a prior debt, and if it was, that would be fatal to her position. The fact that they did wait and did call on one in the position of plaintiff to raise the money would naturally lead one, though not very wise or prudent, to-think there was some trouble about it. The bank was some miles from where they lived but there -was no reason why Mrs. McCarthy couldn’t go and present it, as she actually did do it within two or three days after. The plaintiff was at some inconvenience in raising the money and her evidence leaves it a little uncertain as to when she obtained it.

■ The whole transaction was unusual. A careful consideration of the evidence leads us to the conclusion that the verdict, as it involves the proposition that the plaintiff did not have knowledge of circumstances that ought to have put her upon inquiry as to the rightful ownership of the check by Mr. McCarthy, is against the -weight of the evidence. Upon this ground a new trial should be granted upon the usual terms in such cases.

Judgments and order reversed and a new trial ordered upon the payment by the appellant of the'costs of the trial and without costs of this appeal to either party. In case such costs are not paid within twenty days then judgments and order -affirmed, with costs.

Hardin, P. J., and Parker, J., concur.