text:
    The Mayor, etc., of New York, Resp’ts, v. The Dry Dock East Broadway and Battery R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 22, 1891.)

    1. Railroads—In streets—New York city—Ordinance requiring road TO RUN CARS ALL NIGHT—WHEN UNREASONABLE.
    While the reasonableness of an ordinance requiring a street railroad to run cars as often as the convenience of passengers may require, is open to inquiry in the courts, the burden of showing it to be so is on the party making a claim that it is unreasonable. ■
    2. Same.
    Where the route traveled by defendant’s cars was through a dense,/ populated portion of New York city, connecting distant parts of the city with the newspaper district where a multitude of persons are employed after midnight, and connecting the Brooklyn bridge with the Twenty-third street ferry on the east side, and with a number of other horse car routes,' it was entirely within the discretion of the common council to make provision for possible future public needs as to horse car service, and an ordinance requiring cars to run every twenty minutes between midnight and six a. m., was not unreasonable.
    Appeal by the defendant from a judgment of the justice of the fifth district court in the city of New York, in favor of the plaintiff, for $114.13 damages, with costs.

      Louis Steckler, for resp’ts; John M. Scribner, for app’lt.
   Daly, Ch. J.

—The action was brought upon an ordinance of the common council of the city of New York, requiring the city surface railroad companies to run cars both' ways every twenty minutes between midnight and six o’clock A. M. each dayj and imposing a penalty of $100, for each neglect and refusal to comply with the ordinance.

The complaint alleged a failure on the part of the defendant to run its cars, as required by the ordinance, on East Broadway from Scannell to Catherine streets, on July 11, 1890.

The defense was a general denial, and an averment that the ordinance in question was unreasonable, was never lawfully passed, that the common council had no authority to adopt it, and that the defendant has complied with its charter in relation to the operation of its railroad and the running of cars thereon.

The violation of the ordinance by this company was proved, -it being shown that on a part of its route on East Broadway, cars were not run on the night in question, as required by the ordinance.

The company operates three branches of road, called respectively the Avenue B line, the Avenue D line, and the Cortland street line. The cars of the Avenue B and Avenue D lines run upon the same track through a part of East Broadway, but the cars of the Avenue D line run only upon the track between Clinton and Columbia streets, and it was upon this part of the road that the defendant neglected to run the cars on the Avenue D line, as well as running the Cortland street line. On the Avenue B line only was' there a compliance with the ordinance on the date in question.

It was shown by defendant that the company subsequently, and within twenty days after the ordinance went into effect, commenced and continued to run the Avenue D line as required by the ordinance and the defendant claims that the reason why the cars of that line were not run before was that it was practically impossible to do so. The ordinance in question was passed May 20, ,.890, and approved by the mayor June 3, 1890, but that day its operation was suspended until July 8th by resolution of the common council. The company claimed that it could not procure the necessary horses and break them in for the work within the period from June 3d to July 8th, and that the ordinance was unreasonable, because compliance with it was impossible at the time of the alleged violation.

It appears, however, that within that period the defendant was able to make the necessary preparations to run its cars on the Avenue B line as required by the ordinance, and that it only commenced to buy the extra horses that it needed for the other routes on July 1st. As compliance with the ordinance on such other routes was actually commenced twenty-eight days thereafter, it conclusively appears that there was ample time, if diligence had been used, to complete the necessary preparation between June 3d, when the ordinance was approved, and July 8th, when it became operative.

The only other ground upon which it is claimed that the ordinance is unreasonable is that the running of the ears upon its route between the hours in question is not required for public convenience, and the reversal of the judgment for the penalty is asked for error in the exclusion of evidence offered by the defendant to show that the cars were running empty because there were no passengers between those hours. There is no contention that if the public convenience required the running of these cars there would be anything unreasonable in the ordinance.

The charter of the defendant company provides as follows: “ Section 2. Said railroad shall be constructed on the most approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to time by ordinance prescribe.” Laws 1860, chap. 512.

The defendant is entirely correct in claiming that the reasonableness of the ordinance is open to inquiry in the courts. The legislature has imposed a limitation upon the authority of the common council, to wit: that the rules and regulations prescribed in its ordinance shall be “ reasonable,” and the power exists in the law to restrain any exercise of that authority beyond the limit which the law has fixed. The courts undoubtedly have the power to determine whether the law has been transgressed. Chicago, etc., R. Co. v. Minnesota, 134 U. S., 418 ; Stone v. Farmer's L & T. Co., 116 id., 331.

But if the reasonableness of such an ordinance is challenged, the burden is upon the party making such claim to establish it. In considering whether a regulation in favor of the public convenience and comfort is reasonable, the presumption is in favor of its reasonableness. The judicial power to declare it void can only be exerted when from the inherent character of the ordinance, or from evidence taken showing its operation, it is demonstrated tobe unreasonable. State (Trenton Horse R. Co.) Prosecutor v. Inhabitants of Trenton, 43 Alb. L. J., 188.

In this case the contention is that the ordinance is unreasonable, not because it imposes additional burdens by way of expenses upon the company, but because such expense is unnecessary, the convenience of the public not requiring it. But what proof was offered by the company to show that the ordinance was not required for the public convenience? The assistant superintendent of the road was asked whether, after his twenty years eXperience'ih"connection with'thie road, there is public necessity, or has- ever"been:any-public demand for the running of cars on the road between midnight-and five o’clock in the morning more frequently- than has-been done; aléo, whether prior to the'Stli day oi July, 1890, there" was any'complaint ever made to-tile company, on the part of" any members of " the-public, ttiat' the cars were run less frequently on the "routes'of its various-railroads than the'public convenience required.-

It is not competent to attempt to prove -the unreasonableness of'a'-public ordinance by the opinion or conclusion of "a witness; nor to prove the unreasonableness of- this ordinance by showing that the' company knew of no demands nor complaints which justified-its adoption. As the. regulation of the matter was Ifeft by law'to the common council" and not to the company, it was presumed that" complaints and demands would’be-addressed tb the former and'not t’o-the latter; ■ and' the- offer of the evidence in question ignored’ the fact that it was- the facts before the common council,1 at and before the passage- of the ordinance, which were'proper to be considered in determining' tide reasonableness of their ordinance.

The main struggle at the trial' was1 to get- in proof that since the cars commenced to-run on July 28th, at certain- periods, between-midnight and'six o’clock A. 2vr., there1 were- no1 passengers, and'-that1 the cars-ran empty. But this was an attempt to show a state of things; after the passage of the ordinance and'the-experience of the company with the ordinance,.between July 28th and the time of the trial, October 3d. There was no-attempt to show that the common council did not have, at the time of the passage of the' ordinance, facts' before it which justified the- adoption of the regulation in- question: The ordinance itself proves the existence of an exigency which required if.

“ Neitherin the ordinance itself nor in the indictment' founded upon it, is it necessary to- allege or explain1 the reasons -for its enactment, or the exigency out of which-it grew: It' is' of the nature of legislative bodies" to-judge for themselves, and the fact and" the, exercise of that judgment is to be implied- from the law itself.” Cronin v. The People, 82 N. Y., 323.

The facts which were patent to the.common council at' the time of the passage of- this ordinance, and of which- we may- take judicial1 notice, are; that’ the route traveled by the defendant’s cars is through a densely populated portion of the city, where a vast number of families reside, whose- pleasure or convenience or necessities'might; at sometime, or from time to time, require the means-of transportation by these- cars between midnight and six o’clock A. M.

That the cars connect distant parts of the city with the newspaper' district where a" multitude of persons are employed after midnight; and that the cars connect with the bridge to Brooklyn, and the Twenty-third street ferry across the Bast river, and with a number of other horse car routes; so that even if there were nc immediate public clamor at the moment for the running of cars after midnight, it was entirely within the disr cretion of the common council to make provision for possible future public needs in th,at direction.

The ordinance was not shown to be unreasonable, and should have been complied with, and the judgment for the penalty is affirmed.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Mayor, etc., of New York, Resp’t, v. The Central Park, N. & E. R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 22, 1891.)

      Louis Steckler, for resp’t; Vanderpoel, Cuming & Goodwin (Charles V. Yates, of counsel), for app’lt
   Per Curiam.

—The reasons for. affirming the judgment-in The Mayor v. The Dry Dock E. B. & B. R. R. Co. (decided at this term), ante, 105, apply to the present case, which is also an appeal from a judgment of the district court in favor of plaintiff for, a penalty in. curred under the ordinance of the common council requiring city railroad companies to run cars between midnight and 6 o’clock A. M.; and the judgment should be affirmed.


author: ' Daly, Oh. J.

text:
    John A. Nesbit et al., Resp’ts, v. Henry M. Bendheim, App’lt.

      (New York Common Pleas, General Tern,

      Filed June 22, 1891.)

      1. Contract—Building loan agreement—Payments.
    One Gault made his draft upon defendant requiring him to pay plaintiffs $800 and -deduct the same from the tenth payment on Gault’s contract (door and-blind). This defendant accepted, but an action being brought thereon, denied that, the tenth payment had become due, alleged the acceptance was obtained by fraud, etc. Defendant by his building loan agreement was to advance Gault $31,000 for the erection of certain buildings. The tenth payment, was to be made when doors, blinds and sashes were all hung, etc. Held, that upon the whole evidence the question as to whether the tenth payment had become due was properly left to the jury.

      ■%. Same—Fraud.
    Defendant testified that when the order was presented to him for acceptance plaintiff stated positively that $800 was due them for materials delivered, and produced evidence that this was false. Plaintiff denied that he made such representation, but admitted that he agreed to deliver the goods to Gault at the market price. Held, that this was a question for the jury, and the court was not authorized to take it from them.
    8. Same—New promise—Consideration.
    Plaintiff testified that when he presented defendant’s acceptance for payment the latter told him that they had stopped payment of it on the ground that Gault claimed plaintiff had overcharged him, whereupon Gault gave him a new order on defendants for $800, and plaintiff further testified that when he brought back the order defendant promised to pay. Held, that whether defendant made this new promise or not was a question for the jury, and the procurement of the paper from Gault was sufficient consideration for the new promise.
    4. Same—Pleading of new promise.
    It was not necessary that this new promise should be pleaded in order for plaintiff to recover.

      Appeal from a judgment of the general term of the city court affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Anderson & Man, for resp’ts; Samuel W. Weiss, for app’lt.
   ' Daly, Oh. J.

—This action is brought upon the following order:

“ Mr. Henry Bendheim :
“ Dear Sir—-Please pay to the order of John Nesbit’s Sons the sum of eight hundred dollars, and deduct the same frqm the tenth payment on my contract (door and blind).
“Yours respectfully,
“ $800.00. James H. Gault.”

The order was accepted by the defendant as follows:

Accepted payable when the tenth payment is payable under building loan agreement.
“ Henby M. Bendheim.”

The complaint avers that the tenth payment specified in the foregoing acceptance became due thereafter, whereupon the plaintiff demanded payment of the draft, which defendant refused.

The defenses are:

First A denial that the said tenth payment had become due, or that payment of the order had been demanded of defendant and refused.

Second,. That the acceptance was obtained by the fraudulent representation made by plaintiffs to the defendant, that there was then due and owing to them by Gault $800, for materials furnished for the buildings included in the said building loan agreement, in excess of payments and expenses received by them.

Third. That Gault was not indebted to the plaintiffs in any sum; and

Fourth. That the acceptance was without consideration.

The building loan agreement in question was between the defendant and Gault, and provided that the defendant was to advance Gault $31,000 for the erection of buildings on four lots in Seventy-third street which he had conveyed to Gault. The tenth payment ($4,000) was to be paid “ when doors, blinds and sashes are all hung and properly glazed, plumbing all finished, sinks and water closets in, stoops and door pieces up, and painting finished on all of said four buildings.”

The plaintiffs had furnished Gault with brick, limo and cement for the house in question, and this order was for a balance of $800 claimed by them to be due. The questions whether the work had been completed which would entitle Gault to the tenth payment, and whether there was fraud in procuring this acceptance, were submitted to the jury, together with a third question which was presented by the proofs, namely, whether, after demand had been made upon the defendant for the payment of his acceptance, he had made a new promise, upon a new consideration, to pay the order in question.

The questions of fact in the case were all properly submitted to the jury, and their verdict in the plaintiffs’ favor can be sustained upon the evidence. Upon the issue as to whether the tenth payment had become due, one of the plaintiffs, William H. Nesbit, testified positively that the defendant told him that the payment was due, and only refused to pay the order because Gault had claimed that plaintiffs had overcharged him for materials ; and that defendant promised to pay the order, if plaintiffs would get another written order from Gault. Defendant denies this admission and promise, and gave proof to show that Gault had abandoned his contract before earning the tenth payment, leaving several hundred dollars’ worth of work to be done on that account, although defendant had advanced to him the whole $31,000 required by the contract, and more. It would seem from the case, that W. H. Nesbit testified that, when he received the order in question, which was" at the office of defendant’s counsel in the presence of the latter and defendant himself, it was made payable out of the tenth payment at the defendant’s request; that Nesbit was not familiar with all the contents of the tenth payment, and wanted it out of one of the previous ones, and that they told him “ it was when the doors and sashes were hung; ” that he asked for a copy of the contract so that he could see, but neither the defendant nor his counsel had one, so he had no way of seeing; and he testified that when he demanded payment of the acceptance, the doors and sashes were on. This, however, was denied. But upon the whole evidence in the case on this point, there was a question of fact for the jury.

Upon the issue of fraud, the defendant testified that when the order was presented to him for acceptance, W. H. Nesbit stated positively that $800 was due for materials delivered on the job at market prices; and defendant produced evidence to show that this representation was false, in that the plaintiffs had overcharged Gault for the materials delivered by them. The plaintiff testified that he never made such representation to defendant, although he admitted that he had agreed to deliver the goods to Gault at the market price. A question of fact as to whether such representations were made was thus presented to the jury. There was some contradiction in Nesbit’s own evidence on the question, but that did not authorize the court to take that question from the jury.

On the question of the alleged new promise made by the defendant, as before stated the plaintiff W. H. Nesbit testified that when he presented the defendant’s acceptance for payment, the latter refused to pay because Gault claimed that he had been overcharged, told him that Gault had stopped payment of the order for that reason, but instructed him to get another written order from Gault and he would pay it. The plaintiff immediately procured from Gault the following:

“ New York, August 11, 1887.
“Mr. Henry M. Bendheim:
“I hereby withdraw all my objections to your paying Messrs. John Nesbit’s Sons the amount of their order for $800 ; the order is due and you will please pay the same without further delay.
“ John N. Gault.”

Nesbit further testified that this order was presented to Gault, who promised to give plaintiffs a check for it the next day. The-check was demanded the next day, but defendant refused to give-it, and thereupon this action was brought.

The defendant admitted that he told the. plaintiff to see Gault, about the overcharges, and that this order was brought to him the next day; but denies that he directed the plaintiff to get it or promised to pay him if he did so. The question as to the promise was properly submitted to the jury, and if they found that it was made the plaintiff would be entitled to recover; for even if the origi-, nal acceptance by defendant never became payable by its terms-so that an action could be maintained upon it, yet the new agreement in addition to' the original contract authorized a recovery. The procurement by plaintiffs, at defendant’s request, of the withdrawal by Gau.lt of his objections, was sufficient consideration for the new promise, if such withdrawal were obtained. We arfe not obliged to inquire whether compliance with this request atid the procurement of this withdrawal was of. any value tti defendant. He had his own dealings with Gault and is promised to have had his own reasons for what he did. It is sufficient that he specified the conditions upon which he would rhake immediate payment upon his acceptance (for materials which plaintiff had furnished and which had gone to erect the building in which he was inter-1 ested), and that plaintiffs complied with such condition.

In the case of Willetts v. The Sun Mutual Insurance Co., 45 N. Y., 45, which was an action on a policy of marine inshrance upon certain barrels of cider, it was conceded that the loss was not. covered by the policy, but the company's agent having directed the insured to go and find the cider, have it inspected and sold at auction and do the best they could with it and then come back to the company and the latter would pay them the deficiency, and the insured having done as requested, it was held that a rc- , covery for the deficiency should be affirmed. The court say “ that such a promise after performance by the promisee is valid and binding, and is supported by a consideration therefor. Doubtless it lacks mutuality at its inception. There is then no consideration, and the obligation of it is suspended, but when the performance of the-condition is made there does then attach a consideration which relates back to the making of the promise, and it becomes obligatory. Train v. Gold, 5 Pick., 380. The promise could not be enforced before performance of the condition on which it is made, for úntil then there is no consideration, but as soon as the act has been performed by which a party has; been injured unless the promise is kept the promise becomes binding. Hilton v. Southwick, 17 Maine, 303. Though there be not. mutual promises, however if before he calls for the fulfillment of the promise the promisee do perform that in consideration of his-doing which the promise is made, there is a consideration for the agreement and it can be enforced. L’Amoreux v. Gould, 7 N. Y., 349. If these authorities are sound the promise of the defendant was binding upon "them. We see no reason to question them.” The principle is again recognized in the case of The National Bank of Commerce v. The Manufacturers & Traders' Bank, 122 N. Y., 367 ; 33 N. Y. State Rep., 556.

"It is, however, objected by the appellant that the plaintiffs never did, in fact, obtain a withdrawal of Gault’s objections, jbecause it appears from the evidence that when Gault gave them ■the written withdrawal it was upon their promise to make reduc’tions in their bills. But this fact in no wise 'affects the defendant’s liability. "What he required was a withdrawal of Gault’s 'objections to his paying the order, and this the plaintiffs procured, thus establishing the consideration for the new promise. The private arrangement between Gault and the plaintiffs did not affect the defendant’s rights in any respect.

The chief objection relied upon by the defendant against the right of pláintiffs to recover upon this new promise is, that it was not pleaded; that the cause of action set out in the complaint is upon the original acceptance and performance of the work upon which the tenth payment depended. This objection is not well taken. The cause of action is upon the original contract; the new promise is merely additional.

This is expressly held in the case first cited, and it appears from the report of that case that the action was brought upon the original policy of insurance, the subsequent promise being proved under that pleading. The objection may be disposed of, however, upon another ground. R> objectioh was made when evidence of .the new promise* and the performance of the consideration for it was given at'the trial, atid no objection was taken at the trial to the fact that such evidence was inadmissible under the pleadings. It is, therefore* too late to take the objection now.

The exceptions in the case have next to be considered. Upon the cross-examination of the plaintiff W. H. Resbit, certain questions were put to elicit evidence in support of the defenses set up in the answer. One of these ruled out was subsequently fully answered. Others in relation to market values of the materials were properly ruled out because it was not then shown that plaintiffs had made any representations to the defendant that they had furnished the materials at market rates. The witness positively swore that he did not make those representations to the defendant. Subsequently, when the fact of the representations was testified to, the subject of prices charged and actual values was fully gone into.

The allowance of the question put to the same Witness by his own counsel, as to whether defendant pointed out any deficiency of work that he required to be done before he would pay the order, was proper. It was intended to contradict the defendant’s testimony as to deficiencies in the work by showing that at a time, when, if ever, he would be most likely to complain of them, namely, when he was called upon to pay an order accepted upon condition that the work was completed, he was silent as to any such deficiencies.

The allowance of the question to the same witness as to what passed between him and Gault in regard to correcting alleged overcharges, was proper to explain the testimony of Gault, drawn out by defendant on cross-examination, that he signed the withdrawal ¡ on the promise of the witness to make reductions in the plaintiffs’' bill.

There was no error in excluding evidence that the inspector of j buildings condemned the walls. This was no proof of a failure ' to comply with the rules of the inspector of buildings as required by the contract; it was an attempt to show without any record, ¡ and by hearsay a judgment of the inspector, not any rule or regulation.

The exceptions to the refusals to dismiss the complaint have j been, in.effect, disposed of in 'considering the appellant’s objections as to want of proof that the tenth payment had become j due, and also in discussing the effect of the new promise. The same may be said as to the exceptions to the charge of the court in leaving to the jury the question whether such payment became j due and in refusing to charge that there was no evidence thereof. The exception to the charge of the court with respect to the new promise of defendant shows no error. I

It urns not error to charge the plaintiffs’ request that the $800 in suit did not include a charge (of $279.75), for materials furn- , ished to other houses. Plaintiffs’ testimony explained that this 1 amount had been paid out of a certain cash payment of $11000, and there was no contradiction of this unless the defendant's tes- ’■ timony in reference to an alleged admission of plaintiffs, be so considered. This testimony was as follows “ When Mr. Nesbit said to me that $800 were due he said something with reference j to that $800 being in excess of $7,775, which amount was made up of $1,000 Mr. Nesbit had received in cash and $6,775 in or- i ders. He said it was over and above that amount.” This was Í too loose and uncertain to raise an issue as to the correctness of plaintiffs’ positive statement that the $279.75 was not included in the balance due for these houses. The testimony as to this ad- 1 mission was given by the defendant to show under what inducement he accepted this order, but it is immaterial (under this ex- . ception), that he understood that $1,000 had already been paid for materials for these houses, if, in fact, he was not called upon k to pay for materials he did not furnish for them. ]

The last exception to be considered is that taken to the court’s charging the jury as follows: “If defendant, knowing all the facts, as part of the consideration for the conveyance to Bertha | Davis, agreed himself to finish all the houses, and, after such agreement, promised unconditionally to pay the draft in suit, there ¡ must be a verdict for plaintiffs, regardless of the question whether 1 the houses had been completed to the condition required by the tenth payment.” ;

It is objected that there was no evidence of any agreement by defendant, to finish any of the houses. This is not a fair conclusion from the evidence. Gault swore that defendant agreed, in consideration of that conveyance, “ to go in and help to finish the houses; to put in money to finish them; ” also “ he was to go in and help me finish the houses.”

As Gault swore that he had not the means to finish the houses himself (and this was inferable from the condition of affairs as proved), it might fairly be presumed that the assistance which defendant was to give in finishing the houses was bearing the expense of it, and this was equivalent to finishing them himself.

It is, however, contended that such an agreement would not make the defendant liable upon his acceptance. But why not ? If defendant agreed to take upon himself the finishing of the house, there could be- no default on Gault’s part in reaching any of the subsequent payments under the contract, and so defendant would be liable upon his acceptance to the plaintiff, because any default in completing the work would then be his own default, of which he could, not avail himself.

The judgment should be affirmed, with costs.

Balt, Ch. J., Bischoff and Pryor, JJ., concur.


author: McAdam, J.

text:
    Mary Eliza Rowland, v. Charles Miller and The Taylor Company.

      (New York Superior Court, Special Term,

      Filed June 9, 1891.)

    Covenant forbidding use of property for trade of business “ injurious OR OFFENSIVE TO THE NEIGHBORING INHABITANTS.”
    An undertaker’s establishment for the sale of caskets and furnishing goods for funerals, also for embalming bodies, for autopsies and post-m rtem examinations, the cutting and dissecting of dead bodies for the ascertainment of the cause of death, and for the reception and temporary deposit of human remains awaiting funeral rites and burial, is both “injurious” and “offensive” within the meaning of the covenant, and such use will be enjoined. The terms “injurious” and “offensive” construed.
    Suit in equity to enforce covenant against owner and occupant of adjoining premises by restraining a business said to be injurious and offensive to the neighboring inhabitants.

      Lockwood & Hill, for pl’ff; Burrill, Zabriskie & Burrill, for def’t Miller, W. H. Sage, for The Taylor Co.
   McAdam, J.

—The parties derive title from the same common source and subject to a covenant which forbids the use of the property for any trade or business “ injurious or offensive to the neighboring inhabitants.” The defendant, “The Taylor Co.,” under a lease from the owner, the co-defendant Miller, uses the premises on the south-east corner of Madison avenue and Forty-third street, adjoining the plaintiff’s residence, as an undertaker’s establishment for the sale of caskets and furnishing goods for funerals, also for embalming bodies, for autopsies and post mortem examinations,, the cutting and dissecting of dead bodies for the ascertainment of the cause of death, and for the reception and temporary deposit of human remains awaiting funeral rites and burial. The question to be decided is whether the business combination described, is “injurious” or “offensive” within the meaning of the covenant. Anything that is hurtful, noxious, disturbs happiness, impairs rights or prevents the enjoyment of them, is injurious, and if it causes displeasure, give pain or unpleasant sensations, it is offensive.

The disturbing cause must be real, not fanciful, something more than mere delicacy or fastidiousness,.but-it need,not necessarily be apparent to the senses of sight, smell or hearing, for it may be injurious without offending either. Thus, by the general principles of equity, the continuance of a powder or dynamite, or firework establishment, or a house of ill-fame, will be enjoined at the suit of one who is deprived of the comfortable enjoyment of his property by the close, proximity of, such a nuisance. Hamilton v. Whitridge, 11 Md., 128. And it is- no defense, that there are other establishments to which similar objections lie. Robinson v. Baugh, 31 Mich., 290. This upon the ground that tolerating one nuisance doesnot compel a .party injured thereby to endure others. Nor does the failure to remonstrate against the erection,of a nuisance create an estoppel against complaining of, it afterward. Burt v. Smith, 3 Phila., 363. Exrery person is bound to make, a reasonable use of his property so as to occasion no unnecessary damage- or annoyance to liis neighbor. Sic utere tuo ut alienum non laedas is the fundamental principle on which cases of nuisances are decided. A man (not restrained by covenant) has the right to .use his house as he pleases, but he must not do it-in such a manqer as, to.render the houses of his, neighbors, unfit-for the purposes for which they were intended. A use of property in one locality and under some circumstances may be, lawful and reasonable, which under other circumstances would* be unlawful, unreasonable and a nuisance. Campbell v. Seaman, 63 N. Y., 568. Nuisance, to an extent, is, a question, of: locality and- degree. In-considering, whether an act is a nuisance," regard" must be had' not only to the thing done, but to the surrounding circumstances. What would be a nuisance in one neighborhood might not be so to another. Sturges v. Bridgman, L. R., 11 Ch. Div., 852 ; Hurlbut v. McKone, 55 Conn., 31 ; Dennis v. Eckhardt, 3 Grant’s Cas., 390 ; McCaffrey’s Appeal, 105 Pa. St., 253 ; Dallas v. Art Club, 44 Leg. Int., 512. A lawful trade may be so offensive that it should be carried on only in an out of the way place. 3 Bl. Com., 217.

Blackstone defines a¡ nuisance as, being anything, tp- the hurt-pr annoyance of another. By hurt or annoyance here is-meant, not a physical, ipjury necessarily, bqt an injury to the- owner or possessor pf premises, as respects his dealings with, or bis mpde of enjoying them- Wood says that, a nuisance, in the opdjtiary sense in which the word is used, is anything that produces an appoyance; anything- that, disturbs- one or that is, offensiye. In legal phraseology the term is generally applied to that class of wrongs that arise from the upreasonable, unwarrantable or- unlawful use by a person of his own. property, working, an obstruction of, or an injury to, the right- of another, and producing- such, material annoyance, discomfort or hurt, that the law will presume consequent damage:

The plaintiff, has a higher equity. She is not required to prove that the defendants are maintaining a nuisance. She is seeking to enforce a covenant restricting the use of the adjoining property, and all she is required to prove is, that the use complained of is repugnant to the covenant. While the theory upon which injunctions to restrain breaches of negative covenants are issued is that of preventing irreparable injury, yet the court will not enter into nice discriminations as to the extent of the damage. The mere fact that there has been a breach of covenant, is a sufficient ground for interference. Bispham’s Eq., § 461.

There is an observable distinction between natural and artificial causes of injury, that is, those resulting in ordinary course from causes beyond human control, and those created by voluntary choice or agency. Thus, if a person is taken sick and dies in his own house, he is entitled to appropriate attendance therein and burial therefrom, and no one will be heard to complain, for the consequences are natural, unavoidable and such as every neighbor must, in the nature of things, expect and submit to. This is a lawful thing. But where, as in this case, the occupant of a house advertises for and invites persons in all jrarts of the country to send dead bodies to his establishment, to be temporarily stored, cut up, artistically coffined and furnished with elaborate funeral outfits, services, hearses and carriages, human agency, acting on choice, makes a business of other people’s misfortunes, and parades death in the presence of the neighbors to their pleasure or discomfort, according to the view in which they regard such displays. See 4 Sandf., 503. This is objectionable and illegal. In times gone by, dead bodies were arrested or attached for debt, and held until the friends or relatives satisfied the creditor by discharging the obligation. See 10 Cent L. J., p. 325.

Statutory provisions were found necessary both in England and here to stop the pernicious practice, and in § 314 of the Penal Code, will be found this provision: “A person who arrests or attaches the dead body of a human being upon any debt or demand whatever, or detains or claims to detain it for any debt or demand, or upon any pretended lien or charge is guilty of a misdemeanor.’’

The Penal Code (§ 305), provides that “ a person has the right to direct the manner in which his body shall be disposed of after death.” He or his relatives may permit the body to be dissected, and except in case in which a right to dissect it is given, every dead body of a human being must be decently buried within a reasonable time after death. Id., § 306. As to the right of relatives to control the burial of the dead, see 10 Cent L. J., 303 ; Johnston v. Marinus, 18 Abb. N. C., 72, and note. The tendency is to get dead bodies out of the way, and apart from kindred, none but students (who use them for dissecting purposes), and ghouls take any interest in their possession. The sick and dead have been a constant course of complaint, and many adjudications have been made in consequence. Thus, it has been held, that a hospital for the reception and treatment of patients with contagious diseases, established in a public place, is a public nuisance and indictable as such. Rex v. Vantandillo, 4 M. & S., 73 ; Wolcott v. Melick, 3 Stockt., N. J., 209. The maintenance of a hospital for the care of sick infants, including any who may develop, after admission, contagious disease, was held to be a violation of the ordinary covenant against nuisancés. Gilford v. Babies' Hospital, 21 Abb. N. C., 159. An injunction will be issued to restrain the burial of the dead in a cemetery near one’s premises when it appears that the interments there will endanger health by corrupting the air or contaminating the water of wells or springs. Clark v. Lawrence, 6 Jones Eq., N. C., 83. So, too, the maintenance of a private tomb upon one’s own land near ■ the residence of another, when it is established that by reason of the effluvia arising from the bodies kept there renders the air unwholesome and impairs the value of the property is held to be a nuisance. Barnes v. Hathon, 54 Me., 124.

These cases are cited merely to show to what extent the courts have gone in protecting neighborhoods from what were regarded as objectionable features. Any family of ordinary sensitiveness would at once pronounce the combination of purposes to which the defendants’ establishment is put as shocking to the finer feelings, irritating, causing unpleasant sensations, and destroying the happiness of life and the comforts of home. The plaintiff owns her house and cannot readily leave it. While required to remain she is daily compelled to witness the arrival and removal of bodies in wagons and hearses, followed by the sorrowing friends and relatives of the departed. Such an establishment, no matter how well conducted, is a source of injury to adjoining property, tending to depreciate its selling and rental value, and is to the fullest extent “injurious,” as well as “offensive to neighboring inhabitants,” within the meaning of that term as used in the covenant. No change in the neighborhood relieves from the effect of the covenant sought to be enforced. Within the rule declared in the case of the Columbia College v. Thacher, 87 N. Y., 311, a change of neighborhood from private dwellings to store property may so far relieve from the covenant as to accommodate the change caused by circumstances; i. e., to permit private dwellings to be occupied as stores, but so much of the covenant as enjoins noxious occupations remains in force to protect the neighborhood in its new condition for business from the evils especially inhibited if the covenant can be as well applied after as before. Municipalities deferring to public sentiment have prohibited the interment of the dead within their corporate limits, and have been sustained by the courts. B. P. Church v. Mayor, 5 Cow., 538 ; Coates v. Same, 7 id., 585 ; Kincaid's Appeal, 66 Pa. St., 411 ; S. C., 5 Am. R., 377 ; City Council v. Wentworth, 4 Strobh., 310; Lake View v. Rose Hill Cemetery Co., 70 Ill., 192. “ The burial of the dead within the limits of towns and cities,” says Tiedeman in his work on Limitations of Police Power, § 122d, “ has always been and still is a common evil.” These dicta show that the prevailing tendency is to prevent as far as possible the collection of dead bodies in cities by excluding them therefrom asa protection to inhabitants from any dangers which might be engendered.

Death, in any form, is an unwelcome visitor, and the great majority of people shun places where bodies are awaiting interment. Such places are far from being attractive, except to those morbidly curious. While every advance in science is hailed with delight, popular opinion lias not yet reached the belief that the general good requires that private corporations or individuals shall for gain, or from motives of philanthrophy, open dead houses in fashionable or thickly populated parts of the city where autopsies and post mortems are held, or where dead bodies are cut up and stored, or where funerals are furnished without regard to number, whenever required. Cremation in the city would be as readily tolerated. All of these things are good in their place, but offensive everywhere else.

Dead houses, morgues, dissecting rooms and establishments for autopsies and post mortems, or for the reception of dead bodies, have no place in a city like Mew York, and if tolerated should, for sanitary and other reasons, be permitted only along the river fronts or in some out of the way place, so far removed from habitations as not to offend the amenities of life, and to be absolutely free from all harmful influences. Where a covenant exists, as in this case, it is the duty of the court to enforce it according to its letter and spirit. See Bradley v. Walker, 14 N. Y. Supplt., 315.

The chapel in the rear of the building is not a church within the proper meaning of that term. It has no pastor, no religious principles and no services, except as a mere incident to the funeral business carried on. If a funeral is held, a clergyman, or substitute, is employed to suit the views of the friends of the deceased. Churches, properly so called, are dedicated to the worship of God, according to some prescribed form of religion, and funerals are but a mere incident of their work. In the present case, the “ chapel ” is merely part of the business, and it matters not who occupies the pulpit, or what his views are as to a future state, or whether he has any religious belief, so long as he suits his employers and earns their reward.

It follows, that the plaintiff is entitled to judgment, with a perpetual injunction restraining the continuance of the acts complained of, with costs, and $300 allowance. Settle decree on notice.


author: Van Wyck, J.

text:
    Charles U. Wing, Resp’t, v. B. De La Rionda et al., App’lts.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    Ejectment—Second trial—Extra allowance.
    On the second trial of an ejectment action had under the privilege given in § 1525 of the Code, the court may grant an extra allowance, notwithstanding one was granted and paid upon the first trial, and the total of the two allowances can exceed five per cent of the value of the property in question.
    Appeal from a judgment entered on a verdict directed for the plaintiff.

      O. J. Wells, for app’lts; Charles H. Otis, for resp’t.
   Van Wyck, J.

—This controversy has been much litigated, and received great and careful attention from the court of appeals and from the general term of this court, as will fully appear by an examination of Jackson v. Suydam, City Ct., Gen. Term, Opinion filed Dec. 27, 1887 ; affirmed Ct. App., 17 N. E. Rep., 868 ; Wing v. De La Rionda, City Ct., Gen. Term, 25 N. Y. State Rep., 1005 ; affirmed Ct. App., 34 N. Y. State Rep., 267 ; Wing v. De La Rionda, City Ct., Gen. Term, 37 N. Y. State Rep., 404 ; affirmed Ct. App., June Term, 1891.

This general term has expressed its views upon every question raised upon this appeal, with this single exception: Can the court on the second trial of an ejectment action, had under the privilege given in § 1525 Code Civ. Pro., grant an extra allowance, notwithstanding one was granted and paid upon the first trial ? If the court has such power, then, can the total of the two allowances exceed five per cent of the value of the property ? This absolute right to a second trial and to the vacation of the judgment entered on the first, on payment of costs, is a greater privilege than is accorded in any other form of action to the losing-party. He is required to show no merit in his claim. He is not called upon to even intimate that a rule of justice has been invaded. It wipes out as completely as the moistened sponge in the hand of the school boy does the mark upon the slate, the former proceedings for the defeated party, without a hint of error against him or of merit in his favor, and tells him to fight his battle over again as if a new action had been commenced, though burdened with the risk and penalty of failure. This involves the farther costs awarded in the action.

We can see no good reason, and none has been advanced, why such costs cannot be enhanced by the granting of an extra allowance. Why should the successful party on the second trial of such action be compelled to forego the compensation of such costs for his trouble and vexation in a second contest for his property forced upon him even though his right thereto is incontestable ? This question of costs is before us on a stipulation alone, the form of which excludes from our consideration the amount thereof. The stipulation authorizes the defendant to raise only the question that the court had no power to grant an allowance on the second trial, for1 the reason that the court had granted one on the first trial.

The discussion of the other questions raised on this appeal in the former opinions of this court in this controversy restrains us from a repetition thereof herein, but we refer counsel to them for some of our reasons for the conclusion reached that this judgment should be affirmed. Though we are induced to make a single exception by the earnest attitude and serious argument of appellant’s counsel in his hope that we should change our views based on an expression in the opinion of the court of appeals in which the learned judge of that court says that the circumstance that on the first trial there was no finding of fact that the terms of this so-called Jackson-Bianco letter contract were accepted by the latter relieved that court of considering what would have been the effect of such acceptance thereof upon the rights of the parties to this action. There is no intimation therein that, if that court had considered the same, that they differed from our already expressed views thereon.

At the close of the case by both sides, the defendant moved for a dismissal of the complaint, and the plaintiff asked for a dircction of a verdict in his favor. The former was denied and the latter granted. Then the defendant requested to go to the jury on ten specific questions of fact It would seem that this course had made the court the trier of every question of fact, other than these ten, necessary to the determination of the issues between the parties. Now, let us assume that there was an acceptance of the Jackson-Bianco letter or that the jury would have been justified in so finding: then it would not avail De La Bionda, unless he was the successor of Blanco’s rights.

For, at best, this letter only gave Blanco an equitable claim m the premises, and, though a defendant in ejectment may defeat the plaintiff by showing a superior legal title to his in some third person, he cannot defeat plaintiff’s legal title by showing an outstanding equitable title or claim in some third person. Cagger v. Lansing, 64 N. Y., 417, pp. 426, 427 If the parties made the court trier of all questions of fact other than those included in the ten requests, by the course pursued by them at the close of the case, then defendant cannot complain of the finding that De La ■ Bionda was not the successor of Blanco’s rights involved in the direction of a verdict for plaintiff. But, aside from this sugges tion, we do not think there was sufficient evidence to carry that question to the jury.

Be La Bionda claims to have acquired through Janer the rights of Blanco under this Jackson Letter, which rights, though quite indefinite under the terms thereof, might be generally character ized a kind of conditional executory contract of sale. There is no evidence that his heirs or devisees ever conveyed the same to Janer or to any one. The testimony offered for the purpose of showing the persons executing the deed to Janer to be his heirs falls completely short of that object. There is the same absence of evidence to show that his executors or administrators assigned this so called letter contract to Janer. though it does appear that his administrators assigned to Janer two void tax leases for a thousand years each, made to one Blashfield, which are said to have belonged to Blanco, yet were never in his name, and which were assigned in writing to Janer by Blashfield before the death of Blanco, with or without his consent. There was no written assignment of these leases to Blanco by Blashfield. It does seem to us that one claiming the right of possession of real estate, as the successor of Blanco s alleged equitable claim thereto, against him who has the legal title, should be compelled to establish more clearly his right of successorship than this defendant has done.

Judgment and order granting an extra allowance affirmed, with costs.

Clement, J., concurs.


author: Clement, Ch. J.

text:
    John Raeder, Resp’t, v. Frank Ibert, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    1. Master and servant—Evidence—Matters not alleged in pleading.
    In an action tor the wrongful discharge of plaintiff from the service of defendant, Held, that the defendant cannot be permitted to show on the trial other grounds for the discharge than those set up in the answer.
    2. Appeal—Conflicting testimony—Review.
    A verdict of a jury, rendered on conflicting testimony, will not be disturbed on appeal.
    Appeal from judgment of trial term.

      Foster & Stephens, for resp’t; Moffett & Kramer, for app’lt.
   Clement, Ch. J.

—The defendant employed plaintiff as manager of his business for one year from August 1, 1889, at a salary of thirty-five dollars per week. On December 17, 1889, plaintiff was discharged from the service of defendant, and thereafter brought this action to recover damages for such discharge. A verdict was rendered at the trial term in'favor of plaintiff for the sum of $915.

The defendant in his answer alleges two grounds of discharge; first, that the plaintiff did not devote all his time to the business of defendant, but engaged in work for himself; and secondly, that the plaintiff did not manage the business properly, and carelessly allowed promissory notes of defendant to be protested, and that plaintiff did not keep the books properly, and failed to enter on the books notes and checks which had been given by defendant.

The defendant could not be permitted to show on the trial other grounds for the discharge than those set up in the answer. Linton v. The Unexcelled Fireworks Co., 36 N. Y. State Rep., 694 ; 124 N. Y., 533 ; and seems to have abandoned on the trial the defense that the plaintiff had engaged in other business while in the employ of defendant. The other ground of discharge was passed upon by the jury on conflicting testimony, and their verdict should not be disturbed.

Our attention has not been called to any exception which requires further consideration, and the judgment and order denying a new trial must be affirmed, with costs.

Osborne, J., concurs.


text:
    Katie Healey, an Infant, by Guardian, Resp’t, v. The Hart Bagging Company, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    Master and servant—Negligence—Question for the jury.
    Where a servant is put to work on a dangerous machine, is injured and brings an action to recover damages, and her evidence is that she was inexperienced with the working of machinery, was not instructed as to the danger and not aware of it, while the testimony of defendant’s agent was that he fully instructed her as to the danger, Held, that the question of defendant's negligence and plaintiff's freedom from negligence was properly submitted to the jury.
    Appeal from a judgment for plaintiff, rendered upon a verdict of a jury at a trial term.

      Butler, Stillman & Hubbard, for app’lt; C. J. Patterson, for resp’t.
   Van Wyck, J.

—The plaintiff sued the defendant to recover damages for personal injuries, alleged to have been inflicted upon her through the negligence of defendant in placing her to work on a machine without instructing her m the dangers incident thereto.

The jury rendered a verdict m her favor, and from the judg meat entered thereupon and from the order denying the motion for a new trial on the minutes, the defendant appeals.

The defendant, at the close of the case on the part of ootn parties, moved to dismiss the complaint on the grounds that no negligence on the part of defendant, and contributory negligence on the part of the plaintiff, were shown. The defendant’s excep tion to the refusal of the court to grant a nonsuit on these grounds is the only one presented for our consideration. To pass upon this exception, as well as upon the order denying motion for a new trial, compelled us to examine carefully and critically all the evidence in the case.

We find that there is testimony in the case which, if true, shows that the plaintiff, a girl between fourteen and fifteen years of age, was put to work by defendant on a machine for carding jute butts into sliver or a kind of loose, light or puffy yarn. The jute butts were fed in the back of the machine and the sliver issued out in front thereof in three places simultaneously at the rate or 500 feet in a minute at each spout. Over each spout was a tin hood hiding from view of the girl two fluted rollers moving with 250 revolutions per minute and through which the slivers passed, and then from under the hood into a tin can, the tod of which was only a few inches below the hood or roller. Plaintiff was put to work at pressing this sliver down m each of the three cans as fast as it issued out of the machine. While so at work, on the sixth day of her employment, the sliver overflowed the can in which she was pressing it and caught in the roller, drawing or sucking her hand in behind the machine and roller, inflicting severe injury thereto. The agent of defendant who employed plaintiff, and whose duty it was to instruct her, says the overflowing of these cans was unavoidable and of more than daily occurrence, and, on such occasions, the sliver would frequently be wound around the roller and would likely pull the fingers in, and if it started to pull them in the person would not have time to throw the belt off. He says: “ I knew of this danger of the girls getting their hands drawn in. If I did not warn that girl of the danger of it, I would be in fault.” This agent of defendant affirms that he fully instructed the plaintiff in these dangers. The plaintiff says she was inexperienced with the working of machinery, that she was not aware of the existence of these fluted rollers, and that during her employment at this machine the sliver had never been caught around the roller, and that she received no instructions from this agent of defendant. Under these circumstances, in our opinion, it was the duty of the trial judge to submit the question of defendant’s negligence and plaintiff’s freedom from negligence to the jury. Hickey v. Taaffe, 105 N. Y., 26 ; 6 N. Y. State Rep., 426 ; Finnerty v. Prentice, 75 N. Y., 615 ; see MSS. opinion furnished by plaintiff’s counsel.

After careful consideration of all the evidence, we see no good reason for disturbing the verdict on any of the grounds recited in the order denying motion for a new trial. There is nothing in the appeal book to identify a single remane used by plaintiff’s counsel in summing up to the jury. This being so, how can we be called upon to declare that he in any way abused his privilege ?

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.


text:
    William L. Bond, App’lt, v. Edward C. Smith et al., Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    Master and servant—Open and apparent risks are assumed by servant.
    Where the risks of the absence of a guard upon a dangerous machine are open and apparent, and the servant had full opportunity to acquire a knowledge of its management, he must be held to have assumed such risks.
    Appeal from a judgment for defendants rendered at a trial term.

      Magner & Hughes, for app’lt; A. T. Payne, for resp’ts.
   Clement, Ch. J.

—This action was brought to recover damages for injuries sustained by the plaintiff while in the employ of the defendants. The plaintiff was at work at the time on a machine called a “jointer.’’ The machine contained a cylinder on which were two knives which revolved at the rate of four thousand times per minute. The table consisted of two iron plates with a space of two inches between them, where the cylinder and knives were. There are other details about the machine which need not be described.

The plaintiff had worked on the machine for six weeks prior to his injury, and in that time had full opportunity to acquire a knowledge of its management. Whether he was properly instructed in the beginning is immaterial. The machine was simple and easily understood. It was not necessary to instruct him to be careful not to allow his hands to touch the knives when in motion. The plaintiff says that he attempted to plane a board with a knot next the knives; that as the knot struck them it came out; in that way his hand was thrown off the board and came in contact with the knives.

It is claimed by the counsel for the appellant that a board could be and ordinarily was used to cover the knives. The question is presented whether, conceding that a guard can be used on a dangerous machine, it is necessary for the master to provide one, and if he fails so to do, be deemed negligent This point has recently been decided by the general term of this court, Plunkett v. Donovan, 36 N. Y. State Rep., 91, and we have discovered no authority or reason why our views should be changed. The case of Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520, is directly in point. The employee assumes the risk of a machine, provided its dangers are open and apparent. See also Hickey v. Taaffe, 105 N. Y., 26 ; 6 N. Y. State Rep., 426. The case cited by the appellant, McGovern v. Central Vt. R. R. Co., 123 N. Y., 280 ; 33 N. Y. State Rep., 416, is in point as to-the duty of the master to provide a place reasonably safe for the servant' in the performance of his work. It-is not in point on the question of the duty of the master in, providing safeguards on dangerous machines. The McGovern case has been distinguished by the court of appeals in Cullen v. Norton, 36 N. Y. State Rep., 359.

The defects in the bed of the machine were trivial, as it appears ■ to have been in the ordinary and usual condition after use. Such defects in no way caused the injury to plaintiff. -It is conceded that the plaintiff knew that there was a knot in the board before it touched the knives, and must have had some prior kntiwledge that a knot might come out as the board passed over the machine.

Judgment affirmed, with costs

Osborne, J., concurs.


text:
    Mary Courtney, Resp’t, v. Julius Mannheim, App’lt.

      (City Court of Brooklyn, General Term,,

      Filed June 22, 1891.)

    Slander—Words spoken in heat op passion—Mitigation op damages.
    To say to a person, “ You are an Irish whore,” is slanderous per se, and it is no defense that the words were spoken in the heat of passion and vituperation, and not intended to imply a want of chastity, though these facts could he considered in mitigation of damages.
    Appeal from judgment of trial term.

      Magner & Hughes, for app’lt; Dailey & Bell, for resp’t
   Per Curiam.

—This action was brought to recover damages for an alleged slander. The plaintiff charged in the complaint that the defendant, in the presence of divers persons, used-the following words of and concerning plaintiff: “You are an Irish whore.” On the trial, the defendant denied that he spoke to the plaintiff the words alleged. Plaintiff testified that the words wére spoken in the presence of her two daughters. The question of fact was passed upon by the jury, who found for the plaintiff.

We think that the learned judge charged the jury properly that the word “whore” is slanderousper se, and that the"attending circumstances, namely, the heat of passion and vituperation, constituted no defense, but could be considered in mitigation of damages. The counsel for defendant requested the court to charge that if the defendant did not intend to imply a want of chastity to the plaintiff, the jury should find for the defendant. This request was refused, and properly, for two reasons; first, the law implies that the words spoken were used in their ordinary meaning, and, second, the defendant had denied that he had spoken the words.

The counsel made no request for an instruction to the ]ury that if all the persons present understood, from facts in their knowledge, that the word spoken was simply as vituperation, and not with the intent to imply that the plaintiff was immoral; if he had the question which is now sought to be raised would be in the ease. ;

Judgment and order denying a new trial affirmed, with costs. I

Clement, Ch. J., and Van Wyck, J., concur.


author: Osborne, J.

text:
    John W. Smith, Resp’t, v. Ephraim Martin et al., App’lts.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    Master and servant—Negligence—Evidence.
    Plaintiff’s son, a boy of eighteen, employed in defendants’ shoe factory, was ordered by the foreman to wipe off, with bagging, some oil dripping j from a shaft. He climbed upon some boxes and, while at work, the bag-1 ging became twisted around the shaft and his arm caught in the machinery. He could not explain how it happened. Evidence was offered to show that cotton waste was the usual and proper material for the purpose, as it j did not hang together. Held, that no negligence was shown on the part I of the defendants, and the complaint should have been dismissed.
    Appeal from a judgment of a trial term, entered upon a ver- ¡ •diet of a jury. ’ ;

      A. G. McDonald, for app’lts; Dailey & Bell, for resp’t.
   Osborne, J.

—This action is brought to recover damages, alleged to have been suffered by plaintiff by reason of the loss of the services of his son, George H. Smith, owing to injuries which he received while in defendants’ employ, which injuries it is I •claimed were due to defendants’ negligence.

It appears from the evidence that, at the time plaintiff’s son was injured, he was in his nineteenth year, and had worked in j defendants’ shoe factory for about three years, his duties being apparently to make himself generally useful, whatever - labors he might be called on to perform. The manner in which plaintiff’s j ■son sustained the injuries complained of, may be best described by his own testimony. He testified as follows:

“ Upon this day, the 28th day of February, near eleven o’clock, ] the foreman came to me as I was working on the machine which I worked at scouring shoes, the heels of shoes, and said to me: , 1 George, there is some oil dripping off this shaft, go and wipe it j off;’ and I said, ‘ there is no waste;’ and he said ‘you will find •some around; ’ I said ‘ there is none around; ’ and he said ‘ come , and I will find you some.’ Accordingly he walked with me j through part of the shop, and looked around and found none ; then he went down to a corner of the shop in which there was no machinery, and which was seldom used, and saw in j the comer a piece of bagging, and, pointing to this bagging, he said: ‘Take that;’ and I took this bagging, and walked around to where this oil was dripping off, and the foreman with I me, and climbed up, as there was at this place a tier of boxes • into which lasts were thrown, and I climbed up these boxes and began to wipe the oil off the shaft; then as I was wiping this off, j I know not how it was, but in some manner this bagging be- • came twisted around the shaft and jerked my arm in, and my . .arm was pulled around in a circle, so that my hand came out ¡ this way, turned around and came out this way, and the machinery ! was stopped and they had to turn the wheels back to get my arm out, it was so twisted around the shaft and in the bagging. This bagging was made of regular bagging material: I think it was a piece of a bag cut off; a side of a bag.”

On cross-examination he further testified.

Q. And your best impression is that you had done some rubbing on the shaft before the time you got caught ? A. It is.

Q. How, how did you come to get caught? A. I could not tell you; I simply know that, in fact before I knew anything, that bagging was around the shaft and my hand was in the bagging, and my arm was around the shaft.

Q. You cannot give the jury any intelligent impression, then, of why it was that the bagging got caught in the shaft ? A. Ho, sir; no intelligent impression that I could, that would be any more than surmise.

The contention of the plaintiff was that defendants were negligent in furnishing the piece of bagging for the lad to. use in wiping off the shafting, and evidence was offered to show that cotton waste was the usual and proper material for that purpose. One of the reasons ascribed by the witnesses for using cotton waste for that.purpose was that it was a loose, fibrous material and did not hang together, but it was also proven, that it was also used because it was more absorbent and better to clean with and freer from dirt.

At the close of plaintiff’s case a motion was made to dismiss the complaint, on the ground that no negligence had been shown on the part of the defendants. This motion was denied and defendants excepted. The motion was renewed at the close of the testimony, and again denied and exception taken thereto.

Plaintiff had a verdict, and from the judgment entered thereon and the order denying a motion for a new trial defendants now appeal.

We have very carefully examined this case and are of the opinion that the motion to dismiss the complaint should have been granted.

We are at a loss to see in what way defendants were negligent in the duty they owed to plaintiff’s son as his employers. • There was no duty cast upon the defendants to furnish the very best implements for the wiping of the oil off the shaft. While cotton waste may have been more desirable to use, a piece of bagging was equally well suited to accomplish the purpose desired. There was nothing inherently dangerous in the use of the piece of bagging, nor was any instruction necessary in its use. This lad, it must be remembered, was over eighteen years old ; he had worked' in that factory three years; he knew the shaft was revolving at a rapid rate, and he did not require to be told that rapidly revolving shafting must be approached and handled with some degree of circumspection. There is nothing to show positively how the accident did occur. It is surmised that one end of the bagging hanging down may have been caught on some projecting nut or screw, and when thus caught it rapidly wound around the shaft, the lad’s arm at the same time becoming entangled in the piece of bagging; but such a .cqnclition of affairs does not constitute negligence ,on defendants’ part .under the circumstances. It seems to us that, j.f ¡any inference .of negligence is to be drawn, the lad was the negligent party.

For the reasons stated, the judgment and order denying a new trial must be reversed and a new trial ordered, with costs to abide the event.

Clement, Oh. J., concurs.


text:
    Albert W. Gates et al., Resp’ts, v. Willard W. McDonald et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 1, 1891.)

    Costs—Undertaking for—.Order—Code Crv. Pro., § 3272.
    An order requiring plaintiffs to give security for costs in the sum of ,$250, or ,a deposit of that amount, e^h^usts the' power of the court so far as the original application is concerned, which ,it -has under Code Civ. Pro., § 3272, to compel the giving an undertaking for costs. " ;
    Appeal from order .vacating order requiring plaintiff to give security for costs. The batter .order was granted on motion of de: fendant Henry ;M. McDonald, and required plaintiffs .to give security in the sum of $250 for his benefit. The order vacating it directed “.that ¿the plaintiffs he ..and they ¡hereby are required, within two days from the entry of this order, either to pay into .court the sum of -two hundred and fifty dollars, to be applied to the payment .of the costs, if any, awarded ¡against them, or, at their election, to file with the .clerk of this , court ,,an undertaking, to be executed to the defendants by one or more sureties, -to the effect that plaintiffs vdbl pay, upon demand, tp.the defendants, all costs which may be awarded to them, or ¡any of -them, in the action, not exceeding .the sum specified in the undertaking, -which must be at least two hundred, and fifty dollars." ,

      Jas. Byrne, for app’lts ; W. F. Severance, for resp’ts.
   Per Curiam.

—Section 3272 of the Code .the court in the first instance tto grant simply an order for an undertaking in the sum of $250 or a deposit of that amount as security for costs.

That section was complied with by the order which was giadd in the court below, and the power of the court was then exhausted, so far as the original application was concerned. ,

We think, therefore, -that the order appealed from should be affirmed, with ten dollars costs and disbursements.

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


author: Patterson, J.

text:
    The Union Distilling Co., Resp’t, v. Henry Ruser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Attachment—Affidavit.
    An affidavit was made by a clerk in defendant’s store tl}at Ms,employer being absent from the store on account of illness, his attorney in fact had asked deponent to buy out the stock and goods at a very low price for cash, and upon his saying that it would look like fraud on creditors had called him a fool; and when deponent offered to buy if the creditors were notified, refused to do so, and also stating that defendant’s wife was directed by said attorney to draw all the money from the bank and not to leave any money in the safe, and that she had told a creditor that she had no money, and after paying him twenty-five dollars on account had said when he left the store that that was _ the last payment he would ever get. Held, sufficient to authorize the issuing of an attachment.
    Plaintiff obtained an attachment against defendant on the ground that he was disposing of his property with the intention of defrauding his creditors, based upon the following affidavit:
    “ Carl Sparr being duly sworn, says that he is acquainted with the defendant above named, and has been a clerk in his store at JSTo. 824 Third avenue, in the city of New York, for several years; that said defendant has been ill for some time past, and is now residing in Denver in the state of Colorado; that defendant’s representative in this city, Ludwig Buser, a brother of said defendant, who has a power of attorney from defendant to transact all business, came to deponent about April 10, 1891, and asked him to purchase all the stock and good will of defendant’s business, offering to sell the same for $1,300, much less than its real value, provided deponent would get the money at once and close the transaction; that deponent and said Ruser knew that several bills were shortly coming due, and deponent told said Ruser that such a transaction would look like a fraud on the creditors, whereupon said Ruser called deponent a fool, and told him that he didn’t know anything; that he should go home and get the money from his, deponent’s, wife, without any delay; but deponent believed that there was an attempt to swindle the creditors, and said he feared trouble, but would take the stock and business, provided the creditors were notified and consented, which offer Ruser declined; that defendant’s wife, who is also in said store, was directed to draw all the money from the bank by said Ruser, and not to leave any money in the safe on said premises; that defendant’s said wife has since carried all the receipts of said business about her person ; that on or about the lltn inst., a collector from Park & Til-ford’s called at said store to collect a bill due to said firm from defendant, and, although defendant’s wife had a considerable amount of money in her possession, she told said collector that she had no money; finally, after she had persisted for some time, she paid him twenty-five dollars on account of his bill, remarking in the hearing of defendant, as the said collector left the store that that was the last payment he would ever get; that many incidents lately occurring in said store, and in the management of the business, have convinced deponent that the defendant has determined not to return to Yew York, and to dispose of his stock and business with intent to defraud his creditors.”

      Ludwig Ruser, for app’lt; Samuel E. Duffey, for resp’t.
   Patterson, J.

—The motion to vacate the attachment was based on the papers upon which the warrant was granted, and the single question presented on this appeal relates to the sufficiency of the proof before the learned justice by whom the attachment was issued.

The general ground upon which the writ was allowed was that the defendant had disposed, or was about to dispose, of his property with intent to defraud his creditors, and an inspection of the affidavit used on the application shows that facts sufficient to support it were distinctly stated and by an affiant who, from his relation to the defendant and his opportunties of knowing the facts-to which he deposed, was competent to swear to them as within. his personal knowledge. That affiant (Sparr) was a clerk in the employ of the defendant who, being in ill health, went to Colorado, leaving a power of attorney with his brother to transact all business. That brother asked Sparr to purchase the business,, offering to sell it at much less than its real value if payment were made at once. Sparr told the defendant’s brother that the proposal had the appearance of a fraud upon the defendant’s creditors, and was reproached for his simplicity and told to go home and get the money, but declined to do so unless the defendant's-creditors were notified and consented, but the attorney in fact of the defendant declined to do that.

Thús it appears that the defendant, through his attorney in fact, was attempting in haste to realize money on the defendant’s business, but this by itself may not be sufficient to make out a prima facie case. But the affidavit further proceeds to disclose facts-showing concealments of money of the defendant. The affiant swears, as within his own knowledge, that the defendant’s wife was directed to draw all money from bank and not to leave any of it in the safe on the premises on which the defendant’s business, was carried on ; that the defendant’s wife has since then kept all the receipts of the business about her person, and that while having large amounts of money she has told creditors applying for payment of claims that she had none, and, finally, on paying a-trivial amount on account of a bill, she declared in the hearing of the affiant it was the last payment that creditor would ever get.

These facts, thus sworn to by a person cognizant of them, were-sufficient to authorize the judge to exercise his judgment as he •did exercise it, and the order must be affirmed, with costs.

Barrett, J., concurs.


author: Daniels, J.

text:
    Margaret M. Brennan, Adm’rx, etc., Resp’t, v. Susan E. Hall et al., Trustees, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Witness—Privileged communication—Attorney and client.
    On the trial of an action of interpleader the issue was whether a mortgage executed to J. J., and by him assigned to H., the trustees of whose-will are defendants, was assigned absolutely or for the benefit of M., the-wife of J. J. A witness for plaintiff who acted as counsel for J. J. in the execution and assignment of the mortgage was allowed to testify that H. told him that J. j. wanted him, H., to take an assignment of the mortgage and hold it for M. Held, no error, as it did not appear that the witness had been or expected to be counsel for H., and was neither a party to the action nor interested in the result.
    2. Same.
    Under a general objection to his giving the conversation between J., his client, H., the assignee and himself, such witness would be allowed to testify that his client told him. in the presence of H. to_ draw an assignment to H., which H. might assign to Mrs. J. if he wished. If the objection had been to what J. said, a different question might have arisen.
    Appeal from a judgment recovered at the special term.

      Hatch & Warren, for app’lts; Gilbert W. Minor, for resp’t.
   Daniels, J.

—This is an action of interpleader to determine the title to a fund now on deposit with the Union Trust Company of the city of Hew York. The fund consists of the proceeds of a mortgage debt paid by Henry Korn to satisfy a bond and mortgage executed by him to Judson Jarvis, and by him assigned to Washington A. Hall, whose trustees are defendants and appellants in the action.

The bond and mortgage were executed on the 14th of May, 1884, and the assignment was made on the following day. The debt secured was the sum of $13,500, besides interest. It was alleged on behalf of the plaintiff, who is the administratrix of the estate of Mary H. Jarvis, that the assignment to Washington A. Hall was for the benefit of this intestate, and that he received' the assignment to enable him to assign the same securities to her, while the trustees, by their answer, deny these allegations and allege that by the assignment to him he became, and was, the owner of the bond and mortgage.

To prove the case presented for the plaintiff, reliance was chiefly placed upon the evidence of John H. V. Arnold, who had been attorney and counsel for Judson Jarvis, then deceased." And in that capacity the deed of the premises mortgaged, and the mortgage also, were drawn by him or under his direction. A day or two before they were drawn, this witness testified that a conversation took place in his office between Judson Jarvis and Mr. Hall, and the witness was asked to state that conversation. This was objected to on the part of the trustees on the ground that the witness was incompetent under §§ 829 and 835 of the Code, and that there was not, and could not be, a waiver of the obligation of the witness not to disclose the conversation. This was overruled by the court and the witness was allowed to relate the conversation. But instead of then doing so he related another conversation which he testified took place between himself and Mr. Hall on the 15th of May, the day after which the bond and mortgage were executed. This was further objected to as incompetent as it had been merged in the written paper. But that was also overruled and the counsel for the trustees excepted.

The witness testified that on that morning Mr. Hall was in his l office and spoke to him about the bond and mortgage, and recur'ring to the previous conversation said, “How Jarvis wants me to take an assignment of this $13,500 bond and mortgage, and hold it for Mary, Mamie, as they called Mary H. Jarvis, his wife, and make an assignment hereafter to her.” He said to me, “You know that Jud. and I are old friends; I am willing to do everything I can to accommodate him; I will take an assignment of this bond and mortgage of $13,500 and hold it for Mrs. Jarvis, and make an assignment to her whenever she wants it, but I hope Jud. will fix it up as soon as possible, for I am tired being bothered with his affairs.” This evidence was entirely free from all legal exception, for it did not appear that the witness had in any instance been the counsel for Mr. Hall, nor did the statements refer to any future occasion when it was expected he would act as counsel for him. And as the witness was neither a party to the action, nor interested in its result, hé ' was not incompetent under § 829 of the Code of Civil Procedure, to give this evidence. After giving that conversation he was asked to detail the conversation between Judson Jarvis, Mr. Hall and himself, and to that the objections previously urged were repeated, and also again overruled, to which the counsel for the trustees excepted. And the witness stated that Judson Jarvis came in with Mr. Hall, and said, “I want Mr. ■ Hall to, take an assignment of the bond and mortgage which Korn is going to give on 9,-11, and llj Forsyth street, for my wife ; I want an assignment made out to him, and then he can assign it to Mrs. Jarvis when she wants it. Mr. Hall did not want to do it; objected to it. He said he would like to have these matters all closed up; finally he said he would do it to accommodate him.” If the objection had been taken to what Judson Jarvis said, a different question might have arisen from that which has now been presented. For what he said did relate to a professional act to be performed for Judson Jarvis, who was the client of the witness. But the objections were to the conversation, and included as well what Mr. Hall said in it, as what was said by Mr. Jarvis. The former was not the client of the witness, -and as the latter after-wards testified, never had been, and what he said, the witness was competent to relate.

The objections were too broad, for they included what was said by Mr. Hall, and for that reason were properly overruled. But beyond that the witness was also competent to prove that Mr. Jarvis directed him to make, or that he wanted him to make, an assignment of the bond and mortgage to Mr. Hall. The admissibility of directions given by the client to the attorney for the actions of the latter were held to have been regularly received as evidence from the attorney, in Mulford v. Muller, 1 Keyes, 31, 34. And that ruling was followed in Hebbard v. Haughian, 70 N. Y., 55, where it was said in the opinion that “ The objection that the attorney by whom the deed of April 4th was prepared could not give evidence of the direction he received from the parties, and of the transaction between them, was not well taken. He testified of facts within his own knowledge, acquired in the transaction of the business between the parties, and they were not communicated to him as an attorney to enable him to perform his duties to a client. Knowledge acquired under such circumstances is not within the class of privileged communications.” Id., 62. And to the same effect are the cases of Greer v. Greer, 58 Hun, 251 ; 34 N. Y. State Rep., 448 ; Martin v. Platt, 51 id., 429, 437 ; 21 N. Y. State Rep., 330, and Matter of Austin, 42 id., 516 ; 4 N. Y. State Rep., 666. Nor is Matter of Coleman, 111 N. Y., 230 ; 19 N. Y. State Rep,. 501, in any respect opposed to these authorities, for what the attorneys were there held incompetent to state by way of evidence were conversations with the testator when they received instructions in reference to this will, id., 226, which essentially difered from the authority intended to be conveyed by the interview between Mr. Jarvis and Mr. Hall, and in which the attorney was not even a participant. The case still more widely differs from Root v. Wright, 84 N. Y., 72, where the communications were di rectly with the attorney, and for his guidance in what he was em • ployed to do. While it was in this case the conversation was wholly between Mr. Jarvis and Mr. Hall, to induce the latter to consent to become a party to and receive the asssignment. The conversation was in no respect confidential, and its object was to influence the action of Mr. Hall, and not that of the attorney.

It was also competent for the plaintiff to prove that the object of the assignment was to enable Mr. Hall to make a further assign ment to Mrs. Jarvis, the intestate. As much as that has certainly been conceded by the authorities. Bitter v. Jones, 28 Hun, 492 ; Foote v. Bryant, 47 N. Y., 544 ; Norton v. Mallory, 63 id., 434. A trust was created for her benefit, which the statute relating to trusts in real estate, has in no manner abridged.

The evidence of Mr. Arnold was very direct in proof of the fact that the assignment was made pursuant to the agreement between Mr. Jarvis and Mr. Hall, for the benefit of Mrs. Jarvis. And this was corroborated by the letters of Mr. Hall afterwards written to Mr. Jarvis. That of the 20th of November, 1884, assumes the right of the latter to collect the interest on the debt. And the letter of December 16, 1884, contains the statement that a check was sent with it for the interest, and a blank receipt also accompanied it, .stating the interest to have been received from him, which had accrued on the' bond, secured by this mortgage.

The assignment made by Mrs. Jarvis of so much of the money secured by this bond and mortgage, as would be sufficient to pay to Anna B. Oavaly the sum of $1,837.36 and which has been maintained by the judgment, is evidence of her understanding that she was entitled to the benefit of these securities, and had sanctioned the transaction through which Mr. Hall obtained his assignment. And the deposit ticket made out by Mr, Hall on the 22d of May, 1884, for the $728, and $10,000 received from Mr. Kern, for the property, and the $1,646.42 from Mr. Arnold in the name of Mary A. Jarvis, also indicates the truth of the plaintiff's case. This was for a deposit made at that time in the Oriental Bank, of which Mr. Hall was the president, and it was connected with the sale of this property.

An endeavor was made to overcome the effect of the evidence on the part of the plaintiff, by proof that a preceding mortgage assigned to Mr. Hall by Prince & Whitely was held by him for the benefit of Sarah A. Jarvis, the mother of Judson Jarvis. A statement subscribed by Mr. Hall to that effect was offered in evidence and excluded by the court as incompetent, to which the defendants excepted. But if this had been received it could have had no effect on the disposition of the action, for it was made to appear that the mortgage mentioned in the memorandum was paid off by the money of Mr. Jarvis and his wife, and for that reason it did not and could not enter into the assignment of the mortgage in controversy to Mr. Hall. The evidence could have been of no service even if it had been received.

A memorandum in the handwriting of Mrs. Hall, made on the envelope containing the bond and mortgage made by Mr. Korn, stating that “ all the papers, bond and mortgage, assignments, etc., are the property of S. A. Jarvis,” was offered by the defendants and excluded, to which their counsel also excepted. And that ruling is now justified by the plaintiff’s counsel on the ground that the pleadings nowhere alleged Mrs. S. A. Jarvis to be the owner of this bond and mortgage. But that objection was not made when the evidence was offered and cannot now be considered. But the offer itself was so limited as to justify the exclusion of this memorandum, although otherwise the defendants might have been entitled to have'it received as evidence. 1 Greenl. on Evid., 7th ed., § 120 ; Schenck v. Warner, 37 Barb., 258, 262-4.

It was not as proof in favor of Mr. Hall, who died on the 5th of February, 1885, that the offer was made, but it was stated to be in favor of a third person. Whom the third person was the offer did not state, but it may be presumed from the memorandum that it was Sarah A. Jarvis. And to give the memorandum in evidence in her favor would have been of no service to the defendants. For there was no other evidence offered in any form to prove that she had any interest in the bond and mortgage, or the debt which they evidenced and secured, or that she ever claimed such interest. And without that additional proof, what was in this manner offered would have been of no advantage whatever to the defense. The proceeds of the bond and mortgage was claimed only by the plaintiff as the administratrix of Mrs. Mary H. Jarvis, and by the trustees of Mr. Hall’s estate by virtue of the assignment to him. And this memorandum had no bearing as evidence on either of these claims. And as it was offered was foreign to the case.

There was no evidence from which it could have been held that the assignment was made by Mr. Jarvis to Mr. Hall to defraud the creditors of the former. And that point is consequently not in the case.

There were other objections taken during the trial, but they were all properly disposed of by the court. The judgment seems to be right, and it should be affirmed, with costs.

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


text:
    Melvin Stephens, Resp’t, v. Dorothy Humphreys et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Attorney and client—Purchase of chose in action by attorney—Code Civ. Pro., § 73.
    Where it appears that a mortgage was originally purchased by attorneys íor a client, a judgment creditor of mortgagor, with the object of protecting his interest by foreclosure, and he not caring to complete the purchase that at his request they persuaded a third party, not a lawyer, to buy it as an investment, it is not material whether he bought with an intent to foreclose or not, if the attorneys were in no way interested in buying it so that they might foreclose, as the interdiction of Code Civ, Pro., § 78, does not apply to them.
    Appeal from a judgment of foreclosure granted at special term, Hew York county, in a foreclosure proceeding in which a defense had been interposed that plaintiff’s attorneys had purchased the mortgage for the purpose of bringing an action thereon, in violation of Code Civ. Pro., § 73. Upon the trial at special term it was shown that upon the advice of his attorneys, Trimmer, a judgment creditor of the mortgagor, had concluded to purchase the mortgage instead of selling the property under his execution, so as to avoid the fifteen months delay for redemption. After all the arrangements had been made he changed his mind, and requested his attorney to procure a purchaser for the mortgage, which he did in the person of the plaintiff.

      John K. Van Ness, for app’lts; Silas B. Brownell, for respk.
   Patterson, J.

—The learned judge who presided at the trial of this cause was fully justified in the remark he made at the close of the evidence that not the slightest suggestion of a defense was presented in the proofs. The defendant, E. L. Humphreys, undertook to show that the bond and mortgage were purchased by attorneys with the intent and for the purpose of bringing an action thereon in violation of the statute. Code Civ. Pro., § 73. In the attempt to establish this defense the party interposing it signally failed. The attorneys had no personal interest in the transaction at all, and it clearly appears that the purchase was originally made with the object of protecting the interest of a judgment creditor (Trimmer) who subsequently and because a payment had been made on account of his judgment, did not care to complete the transaction, and at his request his attorneys induced the plaintiff, who is not a lawyer, to buy the bond and mortgage, and he did so on his own account , and not as a mere cover for the attorneys, and as he swears ivbeing called as a witness for the defendant) he “ put the money into that security as an investment whether or not the plaintiff bought with an intent to foreclose is not material. The interdiction of the statute did not apply to him, if he in good faith bought and the attorneys were not “in any manner interested in buying.’’ If they procured the purchase to be made in order that they might benefit, and the purchaser was merely acting in subserviency to their desire, the defense might be sustained, but it is plain that when Trimmer did not care to proceed with the matter and asked the attorneys to find some, one to take it off his hands, the plaintiff was induced to do so. The facts of the case as they appeared on the trial would not have authorized any other conclusion than that reached. It did not appear that the bond and mortgage were bought solely that the attorneys might bring a foreclosure first, and, therefore, the case is not controlled • by what was decided in Browning v. Marvin, 100 N. Y., 144.

The judgment must be affirmed, with costs.

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