text:
    Daniel B. Wesson, Suing for the Benefit of Himself and Other Creditors, similarly situated, of George D. Chapman, as Receiver, etc., Resp’t, v. George D. Chapman, as Receiver of the Lackawanna & Pittsburgh Railway Company et al. In the Matter of the Claim of R. Floyd Clarke, as Assignee for the Benefit of Creditors of, etc., et al., App lt, v. Same.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Mortsaee—Foreclosure—Resale.
    On a motion for a resale in foreclosure proceedings, mere inadequacy of price is not a ground for such relief, unless it is so great as to shock the conscience of the court and raise the inference of unfairness or fraud, or unless there are circumstances of mistake or surprise.
    2. Same.
    The general rule is that such a resale will not be ordered upon an offer to increase the price without the support of some special circumstances in aid of it.
    3. Same.
    Where but little benefit will result to the applicant from a resale, and the prejudice to the present purchaser as well as to the public may be considerable, a resale will not be directed.
    Appeal by R. Floyd Clarke from orders of the Erie special term denying motion to vacate or modify judgment, denying motion to set aside the sale made pursuant to it and confirming the sale.
    The history of the railroad company in question has not been financially fortunate.
    In December, 1884, the Lackawanna and Pittsburgh R. R. Co. was operating a narrow gauge road from Clean to Angelica and a standard gauge R. R. from Belfast Junction to Perkinsville. It was formed by the consolidation of the Alleghany Central R. R„ Co. and the Lackawanna and Pittsburgh R. R. Co.
    Prior to that consolidation the A. C. R. R. Co. issued its mortgage bonds amounting to $600,000, which were then outstanding. And the Lackawanna and Pittsburgh R. R. Co. had issued its mortgage bonds to the amount of $1,600,000. After the consolidation by supplemental mortgage secured the bonds. This was the situation when in Dec. 1884 the People commenced suit against the company to dissolve the corporation, and Chapman was appointed receiver. By order of the court made in January 1885 the receiver was authorized to issue his certificates to the amount of $100,000, to become the first lien upon the L. & P. R. R. Co. property and franchises. He issued certificates and sold ten of them of $1000, each—$10,000, to the plaintiff Wesson. Afterwards in February, 1886, the receiver was authorized to issue his notes to the amount of $50,000, also to be a lien prior to the mortgage bonds on the R. E. property. He did issue $45,000, of notes. He ran the E. R. until September, 1888. In the meantime Barse the holder of some of the mortgage bonds of the Alleghany Central R. R. Co. commenced an action to foreclose the mortgage on refusal of the mortgagee to bring it. And the Mercantile Trust Company the trustee to which the mortgage was made commenced an action to foreclose the mortgage of the Lackawanna and Pittsburgh R. R. Co. Chapman was appointed receiver. Decrees were entered in those actions and sales in execution of them were afterwards and in April, 1889, made of the property and franchises of the original companies and were purchased by a committee for reorganization. And it was perfected and the property conveyed to the Lackawanna and South Western R R, Co. This also embraced the Rochester, Hornellsville and Pittsburg E. R The L. & S. W. R, R Co. issued $600,000 bonds secured by its mortgage, of which $540,000 went to the Central Construction Company for certain specified purposes. The Construction Company operated the R. R. from August, 1889, to April, 1890, and the L. & S. W. R. R. Co. thereafter until in June following. The receiver’s certificates and notes outstanding remained a prior lien upon what was the property of the L. & P. R. R. Co. And the Wesson action was brought to foreclose such prior lien and for judgment directing sale of the property to pay with the proceeds the certificates and notes or so much of them pro rata as such proceeds would satisfy. He recovered judgment accordingly and on September 24, 1892, sale pursuant to it was made to John Byrne for $15,000.

      Clarice and Culver, for app’lt; William, L. Many, for resp’t.
   Bradley, J.

The motion to vacate or modify the judgment is founded upon the charge that it, as entered, did not afford to the holders of the receiver’s certificates and notes the benefit to which they were entitled. As has been observed the orders pursuant to which they were issued,gave them priority over the mortgage bonds previously issued, and that priority continued. This is not questioned. The certificates contained a provision that in case of a sale of the property and franchises of the R R. Go. by judicial proceedings or otherwise and it should not realize sufficient to pay the full amount of the certificates then outstanding the purchaser should assume such certificates, in each of the receiver’s notes was a similar provision. Hq provision to that effect Avas in the judgment pursuant to which the sale in question was made. The decree directed that out of the proceeds of the sale the referee pay first the costs, fees and expenses of the suit, and next the receiver’s certificates and notes or so much of them as the residue of the proceeds would pay.

The orders authorizing the issue of the certificates and notes so far as appears did not contain any such direction and whatever force it had was given by the certificates and notes themselves.

It probably was not contemplated when they were made that any judicial proceeding for the sale of the property would be founded upon them, but that it might be taken for that purpose upon the mortgages and such provision may have been put into the certificates and notes to emphasize their priority and to protect them from sacrifice in such a proceeding. In other words, that they should remain a charge upon the property against any purchaser at a j udicial sale founded upon any junior lien. They were so recognized in the decrees in foreclosure, upon which sales had been made. And in the reorganization, provision was made for their payment.

This action was brought by thé plaintiff not only for the benefit of himself, but of all other creditors of the receiver to enforce the lien of the certificates and notes, and for the purpose of realizing for their payment such proceeds as the sale would produce. It is difficult to see that the provision for assumption of them by the purchaser is applicable to an action and sale for such purpose.

The object of the proceeding was to vest a title in the purchaser free from the lien of those instruments. It would certainly be remarkable to suppose that it was within their contemplation that a purchaser at a judicial sale to foreclose the lien of the notes and the certificates would take the property subject to or assume them in case there was a deficiency of proceeds 1o pay those allegations.

¡Nor is it reasonably supposable that the foreclosure of such lien could effectually be had if the property failed to produce sufficient proceeds to pay them in full. And it would not be practicable to bid in the property for all the holders of the certificates and notes, as some might not assent to take such relation to it, and if they should it might embarrass the future use of the R. R. property and franchise for the most desirable purposes or for such as the public interest might require. Those are some of the reasons why the assumption provisions of those instruments do not seem applicable to a judgment in an action to foreclose the lien of them. And further it is represented by affidavit in opposition to the motion that the appellant Clarke appeared before the referee, was advised of the complaint, the proceedings and judgment, and no question was raised in respect to the judgment. It is also quite evident from what appears in the papers that the property could not have been sold for an amount equal to that of the certificates and notes "outstanding.

In the view taken the order denying motion to set aside or modify the judgment should be affirmed. In support of the motion to set aside the sale and for a resale the appellant alleges that it was made for' a price grossly inadequate and attended with circumstances of surprise. Mere inadequacy of price is not a ground for such relief unless it be so great as to shock the conscience of the court, and raise the inference of unfairness or fraud or unless there are circumstances of mistake or surprise. O'Donnell v. Lindsay, 7 J. & S. 523 ; Kellogg v. Howell, 62 Barb. 280 ; Gould v. Gager, 18 Abb. 32; Tripp v. Cook, 26 Wend. 143; American Ins. Co. v. Oakley, 9 Paige 259.

The amount for which the sale was made appears quite small for a railroad, but it appears that most of the time of its operation it had been run at a loss and the affidavits in opposition to the motion tend to show that its value was in the old iron and steel to be taken and sold as such.

The only "offer in the moving papers to pay a larger price on resale is made in the affidavit of Mr. Post who says he will bid and give for the property if the same be sold by judicial sale free and clear of all incumbrance the sum of thirty thousand dollars.” This may therefore be deemed the price for which it would sell on a resale.

The general rule is such that a resale will not be ordered upon " an offer to increase the price without the support of some special circumstances, in aid of it. Lefevre v. Laraway, 22 Barb., 167— 173.

The sale was advertised for September 23, 1892, at 10 A. M. Shortly before that time an order, made by Mr. Justice Beach,was served upon the referee in terms staying the sale until a future day when the plaintiff was required to show cause why it should not be further stayed during the pendency of the appeal from the judgment.

The sale was held open until 12.30 p. M. the next day. In the meantime, the order was vacated by the justice who made it, for irregularity in that it was obtained without the notice reqired by rule 67. And the sale was then made. The order seems to have been obtained upon application in behalf of the Central Trust Company of New York. The appellant Clarke was absent on vacation, and it does not appear that he knew anything of the order at the time it was obtained or vacated, nor does it appear that any person was deterred from being present at the sale by reason of the order, although Mr. Clarke in his petition states his belief that persons neglected to attend the sale to bid by reason of the order and its vacation.

The offer made to bid double the amount for which the property was sold, in view of the other circumstances, before referred to, has some force upon the application for a resale, and if it could, be granted without prejudice would be entitled to grave consideration upon the question. It may be observed that the certificates and notes outstanding with interest at the time of the sale amounted to $151,241.49, of which the purchaser held $185,-562.63, leaving only $15,678.86 held by others.

The claim of the appellant Clarke in them then amounted to $1,699.60. The costs and expenses of the action which the referee was by the decree directed to pay from the proceeds amounted to $7,485.43. If there should be a resale of the property for $30,000, the appellant would receive only about $160 more than he is entitled to from the proceeds of the sale already had. And it appears that the expense of a resale would exceed that sum. In view of the fact but little benefit would result to him from it, and the prejudice to the present purchaser, as well as to the public, might be considerable, as he stated a purpose to have the road equipped and extended at considerable expense, and that a resale would have the effect to delay the work, and as stated by him, he apprehends would render it difficult or practically impossible to raise the funds upon the plan already devised to rebuild, equip and extend the railroad as is contemplated. Many of the business men on the line of the road, by affidavit, express their confidence in the persons interested in the purchase and in their purpose to put the road in operation; and that the people there will assist them in accomplishing it. There seems, therefore, a public interest which may not be entirely overlooked in view of the fact that no substantial or inconsiderable benefit only would likely result to the appellant from a resale of the property. Then he is not free from the imputation of laches. He knowing that the property was to be sold by virtue of the judgment took no action - whatever, so far as appears, to seek to have it bring any larger sum than it was sold for, and. in fact gave no attention to the matter. There were several persons present at the sale and eight different bids made when the highest one was reached. The sale seems to have been fairly conducted by the referee, and it is stated in the affidavits that the purchase was made in the name of the jiurchaser in good faith and for the purpose on his part and that of his associates, of putting the railroad in operation. Upon all the facts as represented in the papers, on which the motion was heard and to which it is deemed unnecessary to further refer, we think the disposition of it as made at special term was fairly justified.

The orders appealed from should be affirmed, without costs.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    George W. Thomas, Appl’t, and Resp’t, v. The Grand View Beach Railroad Company, Resp’t, and App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Equity—Jurisdiction—Adequate remedy at law.
    The general rule is that a court of equity will not entertain jurisdiction, wlieré the question is properly raised, in a case where there is an adequate remedy at law.
    2. Same—Ejectment.
    Where the defendant is wrongfully in possession of the land on which its road is constructed, the plaintiff may maintain ejectment to recover its possession.
    3. Same—Pleading.
    The fact that the plaintiff has an adequate remedy at law, is a defense which must be pleaded, to enable the defendant effectually to raise the objection.
    Cross appeals. The plaintiff appeals from judgment entered upon decision of the court at Monroe special term dismissing the complaint. The defendant appeals from so much of the judgment as determines that the plaintiff is the owner of the premises described in the complaint The plaintiff -alleges that the defendant unlawfully constructed its railroad upon his lands and has since run its cars upon it, The action is brought to restrain the defendant from maintaining and operating its railroad upon plaintiff’s land and for damages.

      John Desmond, for app’lt; John D. Lynn, for resp’t.
   Bradley, J.

The facts as found by the court are that in April, 1891, the defendant went upon the plaintiff’s premises and there constructed its electric railroad without the consent of the plaintiff, that in May following the defendant began and has since continued the operation of the railroad by running a motor car and one or two ears attached thereto, and that it will continue to -do so unless compelled to desist therefrom. These findings of fact were warranted by the evidence. And as conclusions of law the court determined that the entry of the defendant upon the ■plaintiff’s land was unlawful, that for the injuries occasioned by such entry, use and occupation of it by the defendant the plaintiff has an adequate remedy at law., and therefore is not entitled to maintain his action for injunctive relief, and that the complaint should be dismissed unless the plaintiff so amends his complaint as to convert the action into one for relief at law. This the plaintiff did not elect to do, and judgment dismissing the complaint .was entered as directed.

The general rule is that a court of equity will not entertain 'jurisdiction, where the question is properly raised, in a ease where there is an adequate remedy at law. There are however to this rule some exceptions, within which are cases where equitable relief is necessary to prevent irreparable injury or the multiplicity of suits. McHenry v. Jewett, 90 N. Y. 58 ; Thomas v. Musical M. P. Union, 121 Id. 45 ; 30 St. Rep. 563; Corning v. Troy I. & N. Factory, 40 N. Y. 191; Wheelock v. Noonan, 108 Id. 179; 13 St. Rep. 110.

An inquiry is whether or not the plaintiff’s case comes within the exception. He could maintain action of trespass against the defendant to recover damages sustained up to the time of its commencement but the trespass would be continued if the defendant persisted in thereafter maintaining and operating its railroad there .and the plaintiff for his indemnity might be required to bring suits from time to time.

Such was the situation in WJieelocJc v. Noonan, supra. In such case unless there be some other adequate and ample remedy at law, it would be a proper one for the exercise of equitable jurisdiction where complete relief could be awarded, as justice between the parties should require. Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274; 41 St. Rep. 541. The railroad in question was constructed of ties in the usual manner, and for the purpose of its use and operation the defendant had the possession of the land on which it was constructed. The plaintiff may therefore maintain ejectment to recover the possession of his land so appropriated. Carpenter v. Oswego & S. R. R. Co., 24 N. Y. 656 ; Wager v. Troy Union R. R. Co., 25 Id. 526. And in such action the plaintiff would on recovery be entitled to recover damages for withholding the property and the rents and profits or value of the use and occupation, formerly known as mesne profits Code'Civ. Pro., §§ 1496, 1497, 1531, by inserting proper allegations for the purpose in the complaint. Larned v. Hudson, 57 N. Y. 151; Clason v. Baldwin, 56 Hun, 326; 31 St. Rep. 350 ; Wallace v. Berdell, 101 N. Y. 13. Whatever the fact may be in that respect it does not appear that the plaintiff has suffered any damages by the entry and use made of the premises by the defendant, other than such as might be recovered in an action of ejectment.

In Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, which was an action in equity, damages for injuries resulting to the plaintiff's property outside of the premises upon which the railroad was constructed were included in those claimed to have been suffered by him for reasons there alleged.

And in Lynch v. Metropolitan El. R’y Co., 129 N. Y. 274; 41 St. Rep. 541, was the like claim for damages, and it may be sup¡josed that the plaintiff there had no'title in the fee of the street where the railroad was constructed. But his easements having relation to his adjacent premises interfered with by the construction and operation of the elevated railroad were those of light air and access, and thus the beneficial use of his premises was impaired and their value depreciated.

If it be assumed that the plaintiff had an adequate and, complete remedy at law by action of ejectment, the further question arises whether the objection was so raised as to make it available to the defendant. It is of course unnecessary to plead it as a defense in a case where there is no support for equitable relief in the facts alleged. Hawes v. Dobbs, 137 N. Y. 465-470; 51 St. Rep. 271. In the present case it was within the power of the court to grant equitable relief upon the facts alleged in the complaint and proved on the trial. And in such case the rule seems now well settled that the fact that the plaintiff has an adequate remedy at law is a defense which must be pleaded to enable the defendant effectually to raise the objection. Town of Mentz v. Cook, 108 N. Y. 504: 13 St. Rep. 845 ; Ostrander v. Weber, 114 N. Y. 95; 22 St. Rep. 979; Buffalo S. & C. Co. v. D., L. & W. R. R. Co., 130 N. Y. 152; 41 St. Rep. 259 ; Watts v. Adler, 130 N. Y. 646; 41 St. Rep. 325; Williamsburg Sav. Bank v. Town of Solon, 136 N. Y. 465-474; 49 St. Rep. 840; Dudley v. Congregation, etc., 138 N. Y. 451-460; 53 St. Rep. 19; Centre v. Weed, 63 Hun, 560-563; 44 St. Rep. 463; Weaver v. Haviland, 68 Hun, 377-381; 52 St. Rep. 311; O'Brien v. McCarthy, 71 Hun, 427; 54 St. Rep. 532. This was not done by the answer.

The trial court was permitted by the evidence to find as it did the fact in support of that portion of the judgment from which the defendant’s appeal was taken.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs. All concur.


text:
    Margaret Leary, as Administratrix, etc., App’lt, v. The Lehigh Valley Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    Masted and servant—Appliances.
    Where the master provides appliances, reasonably safe, in good condition and adequate to the purpose in view, the fact that the use of them is or becomes unsafe by want of due care on the part of the employes, does not charge the master with injurious consequences so occasioned to them from such use.
    Motion by the plaintiff for a new trial on exceptions taken on the trial in the superior court of the city of Buffalo and ordered heard at general term in first instance. Removed into this court pursuant to Code Civ. Pro., § 273.

      John Loughlin, for pl’ff; Martin Carey, for deft.
   Bradley, J.

The plaintiff charged that the death of her intestate was caused by the negligence of the defendant. A nonsuit was directed by the trial court.

The plaintiff’s intestate was a fireman in the discharge of his duty as such upon the defendant’s locomotive engine which was drawing a train of freight cars at the time in question. His death was the result of injuries received from the explosion of the boiler, which also caused the death of the engineer. There is no dispute about the facts. The boiler of the engine exploded because the water in it was permitted to get too low. The explosion was the necessary consequence of the cause which produced it The engineer was a competent man for the position he occupied. The engine was in good condition for service, and the only question is whether it was properly equipped with the means or apparatus to enable the engineer to guage the water in the boiler. There were two injectors on the engine properly located for the purpose of taking water, when required, from the tank into the boiler, with the means for such supply no fault is found. Upon the boiler were guage cocks accessible to the engineer by which he could test the height of the water in the boiler, and ascertain whether it contained adequate quantity for the purpose of steam and safety. This he had failed to do at the time in question, the water had fallen about fourteen inches below the crown sheet, which became so heated that the stay bolts were ineffectual to hold it to its place and the necessary consequence was the explosion. This would have been obviated by a supply of water sufficient to cover it. The crown sheet is said to have been twenty inches below the upper surface of the boiler. This condition of the water in the boiler was attributed to the failure of the engineer to use the means he had of ascertaining the necessity which existed, for future supply of water in the boiler and to furnish it by the use of the injectors. The try cocks were in good order. The time of the explosion was on a December morning before daylight. The weather was very cold. And there is some evidence tending to prove that by the sound on opening the guage cocks there might be some difficulty in distinguishing between emission of water and steam, and, therefore, it may be said that if he applied the test by the means provided, he could, by the discharge of steam have been misled into the belief that it was water.

It is insisted by the learned counsel for the plaintiff that it was the duty of the defendant to furnish better facilities for the engineer to ascertain the state of the water in the boiler; that there should have been provided a stationary light to enable him to see the valve or test cocks in the night time, or that there should have been a glass gauge in like" manner lighted; but more especially it is urged that there should have been in the crown sheet what is known as a fusible plug. The duty of the defendant was such that it was required to use reasonable care in furnishing its employes with suitable implements, apparatus and machinery for the service in which they wore engaged. The duty did not demand of it the supply.of the very best means that could be devised. The requirement is satisfied when they are provided with appliances, which in that sense of the term are reasonably safe, in good condition and adequate to the purpose in view. And then the fact that the use of them is or becomes unsafe by want of due care on the part of the employes does not charge the master with injurious consequences so occasioned to them from such use. Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621; Kern v. DeCastro & D. S. R. Co., 125 N. Y. 50; 34 St. Rep. 363.

It is sufficient that the apparatus is in good condition of repair and is such as is ordinarily or generally in use for the like purpose. Hickey v. Taaffe, 105 N. Y. 26 ; 6 St. Rep. 426.

The application of these general principles to the present case would seem to relieve the defendant from the charge of negligence. While a well sustained light upon the test valves would render it more convenient to discover in the night time whether water is discharged from them when opened, the absence of light requires only more care to do so. The same may be said of a glass gauge exposed to light with the qualification that as appears by the evidence it might become clogged and unreliable. Then it would be worse than useless. And although a fusible plug in the crown sheet would by the melting of its filling make an opening for the passage of steam into the firebox and thus give warning, this might also have the effect to stop the train and bring danger of collision in the rear as well as to cause delay in travel and transportation upon the railroad. The engineer knew that he had neither of those appliances to relieve himself from care in using the means provided. He had the infallible gauge cocks to test and ascertain the height and adequacy of the -water in the boiler and as must be assumed sufficient skill to do it intelligently.

So far as appears by the evidence the fusible plug is not used on railroad locomotives. It is, however, used to some extent upon stationary engines and upon some in marine service other than war vessels. In the case where so, used it may be done without danger and with less inconvenience.

The calamity in question must therefore be deemed the result" of the negligence of the engineer, and not the co-operative negligence of him and the defendant. And as one of the hazards assumed by the plaintiff’s intestate when he entered into the defendant’s service was that arising from the negligence of his co-employes the alleged cause of action is not supported.

The motion for the nonsuit was therefore properly granted. And the view here taken renders it unnecessary to consider any other exception, as none of the evidence excluded or stricken out could have had any essential bearing in support of the action.

The motion for a new trial should be denied and judgment directed for the defendant.

All concur.


author: Bradlet, J.

text:
    S. Hobart Dorr, Resp’t, v. August Beck, as Sheriff, etc. et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Fraudulent conveyance—Good eaith oe grantee.
    Whatever may he the design of the judgment debtor in disposing of the property, good faith on the part of the grantee, in making the purchase and paying the consideration, will protect him and his title as purchaser.
    2. Evidence—Trespass—Measure oe damages.
    Proof of the fair market value of the property at the time of the levy and sale by the sheriff is the proper measure of damages; and it cannot be assumed that the plaintiff, in giving such price, included in bis'answer anything beyond its then value.
    3. Appeal—Harmless.
    Improper evidence, which does not prejudice the opposite party and has no bearing upon the issue, is harmless.
    Appeal from judgment entered upon report of referee in favor of plaintiff.

      F. M. Inglehart, for app’lts; William u. Cramer, for resp’t.
   Bradlet, J.

The defendant Back as sheriff by virtue of an execution issued upon a judgment in favor of the other defendants against one Charles Skinner levied upon the goods in question and afterwards sold them at the instance of the other defendants. The property consisted of a stock of goods and fixtures in a drug store, at the time of the levy in the posession of the plaintiff, who was engaged in the business of selling the goods at retail. Skinner having been the former owner had carried on the business there until two days before the levy was made. He then sold out to the plaintiff. The defense is mainly founded on the charge that the sale to the plaintiff and the purchase by him were made with." the intent to defraud the creditors of Skinner. The referee found otherwise. And his conclusion in that respect was supported by the evidence.

The fact that the defendants Hubbard were proceeding to judgment against Skinner and recovered it two days after he made the sale in some evidence of intent on the part of the latter to hinder, delay or defraud his creditors by his sale made of the property; and if the question had rested wholly upon his purpose the referee would have been fairly justified in finding the fact of such intent in support of the levy and sale. But whatever may have -been the design of Skinner in disposing of the property, good faith on the part of the plaintiff in making the purchase and paying the consideration would give protection to him and his title as purchaser. The purchase price was $2000. He at the time paid $500, and assumed an indebtedness of Skinner for the goods amounting to $1500, and substituted his own notes with his mortgage to the creditor in place of. those before held against Skinner. There is no evidence tending to prove that the plaintiff had any knowlege of the indebtedness of Skinner to the defendants Hubbard or of any action pending to recover it at the time of the purchase, but there was evidence which permitted the conclusion that he had no such knowlege or information and that he neither knew or believed that the sale was intended by Skinner to defraud his creditors. The price he paid and undertook to pay for the property was equal in amount to its fair value. Upon the evidence in view of the findings of the referee it must be assumed that the plaintiff was a purchaser in good faith for value. And therefore his title was effectual to support his action for relief against the defendants. Jaeger v. Kelly, 52 N. Y. 274; Starin v. Kelly, 88 Id. 418; Stearns v. Gage, 79 Id. 102 ; Parker v. Conner, 98 Id. 118; Zoeller v. Reiley, 100 Id. 102; Bush v. Roberts, 111 Id. 278; 19 St. Rep. 122. The facts as found by the referee were , permitted by the evidence, and no consideration of any of the exceptions to them is required. It is however urged that he erred in some rulings admitting evidence on the trial.

When the plaintiff as a witness was asked to state what wasthe fair market value of the property at the time of the levy and sale by the sheriff, the objection was taken that it was not the proper measure of damages. The objection was overruled and defendant excepted. If the evidence so offered was to prov^ the value at retail prices of the goods as claimed by the defendants its reception was error. Welch v. Haviland, 69 N. Y. 448. But such was not necessarily the import of the question, which the witness was called upon to answer; and if it had subsequently appeared, that such was the effect of the evidence given by him, a motion could properly have been made to strike it out.

The measure of damages was the value of the property at the time referred to in the question, and it cannot be assumed that he could or did include in his answer anything beyond its then value. The retail prices would necessarily embrace uncertain or indefinite profits in the future, and involved the labor and expense attending the disposition in that manner of the stock. There was no apparent error in the ruling.

The plaintiff was permitted to introduce some evidence of the average daily sales and expense of the business of selling goods from the stock at the store a short time before the levy was made, and exception was taken. This evidence abstractly considered was immaterial and its reception error, but it is not seen that it could have prejudiced the defendant in any respect. It had no bearing upon the question of value of the property, and the amount of the recovery was based solely upon the value of it as found by the referee. The evidence was evidently harmless.

And the examination of the rulings upon the trial discloses no error to the prejudice of the defendants. There was some conflict in the evidence upon the question of value of the property presenting quite a difference of opinion upon that subject. The referee adopted that midway between the two extremes as its value. In this it cannot be said in view of the entire evidence that in determining that question of fact lie did any injustice to the defendants. And his opinion indicates that the evidence was carefully considered by him. The judgment should be affirmed. All concur.


text:
    Allegany Lumber Company, Limited, App’lt, v. William Hoyt et al., as Surviving Partners of, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Contract—Breach.
    If, under an agreement that the parties should have equal facilities for the removal of their bark, logs and lumber, any exclusion of the plaintiff from the use of the engine, employed for this purpose, was unduly caused by the defendants’ appropriation of it to their own use to the plaintiff’s prejudice, they are chargeable for the consequences.
    3. Same.
    The fact that the plaintiff had a large quantity of lumber remaining piled in the woods at the close of the season, does not necessarily require the conclusion that it had been denied the facilities to which it was entitled.
    8. Same—Construction.
    The contract in question was held to include only the lands from which, it was contemplated by its provisions, the bark and timber would be taken.
    Appeal from a judgment entered upon report of a referee. The action was brought for an alleged breach of contract made between the parties of date May 15, 1884, by which the defendant agreed to sell to the plaintiff all the hemlock timber, after it had been cut and the bark peeled from it, on certain described lands in McKean and Bradford counties, State of Pennsylvania at a certain price per specified quantity, also the cherry, ash, oak, cucumber, basswood, whitewood, pine and black birch upon the lands at another price specified. It was stated in the contract that the defendant intended to construct a railroad from the terminus of the FT. Y., L. B, & W. B. B. in the city of Bradford up the >vest branch of the Tunangwant Greek and up Fuller Brook to the East line of warrant FTo. 3422 to be furnished with an engine. The railroad to be and remain under the management and control of the defendants subject to the terms of their contract with the FT. Y. L. E. & W. B. B. Co. of date May 9, 1884; and that the parties and Benjamin F. Hazelton should have the right and privilege of using the railroad and engine for the purpose of moving bark, logs and lumber, they respectively to furnish their own rolling stock other than the engine; that the cost and expense of operating and maintaining the railroad after its completion be borne by the plaintiff, defendant and Hazelton pro rata in proportion to the number of car loads shipped over it by each; and that the plaintiff should have equal rights and facilities with the defendant “in loading its cars and in moving all logs and timber.” The railroad was afterwards constructed and completed in August, 1884. And the contract remained operative between the parties to it until in January 1888. The plaintiff charges that the defendants failed to pay their pro rata share of the expense of maintaining and operating the railroad, and denied to the plaintiff the facilities to which it was entitled for removal and transportation of its logs and lumber and as the consequence the plaintiff sustained large amount of damages. The allegations in support-of a cause of action were put in issue by the answer of the defendant ; and they alleged a" counterclaim against the plaintiff for' moneys due them on the contract. The referee found that there-remained unpaid from the plaintiff to the defendants of the-purchase price of the timber sold to it, the sum of $4,265.91 which became due June 1st, 1889 ; that the defendants had failed and neglected to afford the plaintiff equal rights and facilities with them in loading its cars and in moving logs and timber over the railroad, to the plaintiffs’ damage of $2,000, and directed judgment against the plaintiff for $2,368.36.

      Charles ¿S'. Cary, for app’lt; Frank W. ¿Severos, for resp’ts.
   Bradley, J.

The defendants had a large tract of hemlock timber land in the counties of McKean and Bradford in the State of Pennsylvania. They desired to use the bark in their tannery in Limestone, in the county of Cattaraugus, N. Y, and the plaintiff wanted the timber to manufacture into lumber for market-The timber was on the uplands some miles from the city of Bradford in the county of McKean. And it was quite necessary to enable the parties to get the timber, lumber and bark to their places of destination and market, to construct a railroad leading from such lands to intersect that of the N. Y., L. E. & W. R. R. Co. at the city of Bradford, which was the most feasible means to accomplish the purpose in view. The parties "having a common interest joined in its maintenance in the manner provided in the contract. The N. Y. L. E. & W. R. R. Co. contributed to the construction of the road pursuant to a contract of date May 9, 1884 between it and the defendants by which that company agreed to furnish the iron rails, the defendants to maintain it, the railroad company to furnish the defendants with empty cars at Bradford as required for their business, and the railroad to be used jointly by them and the company. It had a right of way on the route mentioned in the contract, up the west branch of the Tunangwant creek on which a road bed had been constructed, and a tramway laid and then in use by Benjamin E. Hazelton who thereupon in view of the advantages to accrue to him from the contemplated road surrendered the road bed to the railroad company. And on May 15th, 1884, Hazelton entered into contract of that date with the défendant by which they sold to him all the hemlock timber after the bark had been peeled from it, on certain lands in the county of McKean, Hazel-ton to cut the timber, peal the bark and load it upon the cars for the defendants, whb also sold to him other timber on the same track, and they in the contract expressed their intention to construct a railroad up the west branch of such creek for the distance of eight miles and to furnish an engine, they also to furnish cars for removing the bark, Hazelton to have the right to use the railroad and engine to remove his logs, timber and lumber, but to furnish his own rolling stock other than the engine for that purpose ; and Hazelton to have equal rights and facilities with the defendants and the plaintiff in moving his logs, timber and lumber over the railroad and in the use of the engine. It-thus appears' that all these parties had an interest in common in the purpose for which the railroad was intended. The railroad was completed and with a view to its operation the plaintiff, defendant and Hazelton entered into an agreement of date August 23, 1884, whereby it was mutually agreed that Hazelton “should have absolute charge of operating said West Branch railroad under the. direction of the N. Y. L. E. & W. R. R. Co.”

The parties assumed to proceed upon the basis represented by the contracts before mentioned. The plaintiff charges that their provisions were not observed in that it was not permitted to have equal rights and facilities, with the defendants in the means of the removal of its logs, timber and lumber upon the railroad. This complaint has relation to the use of the engine and supply of cars. Upon that subject there was much evidence which was not entirely in harmony. The plaintiff had a mill located on what was known as Fuller Branch of the railroad, where a large quantity of lumber was manufactured from logs taken there on the cars, and later cars were employed in- removing the lumber from the mill. There is evidence tending to prove that the engine was almost constantly employed in taken empty cars to places where desired to load upon them bark for the defendants, logs and lumber for the plaintiff and Hazelton, the bark and lumber taken to Bradford for transportation elswhere, and the logs to the mills to be cut into lumber, that there were times when cars were not required or desired by the plaintiff, or those in charge of its mill there at Fuller Branch.

It may be observed that neither of the parties undertook to furnish cars for any other of them. Hazelton had his own log cars, the plaintiff and defendants were dependent Upon the railroad company for cars for their use, while the defendants wanted them for their bark, the plaintiff required them for its logs and lumber. Those supplied by the B. B. Go. to the defendants upon their order were not available to the plaintiff in some instances because the railroad company would not consent to their use by it. And Hazelton did not premit the use of single brake cars to haul out the plaintiff’s lumber because he did not deem it safe to do so on the grade of 350 feet to the mile. His views in that respect had some evidence in its support and tending to justify it While it was contemplated that the parties should have equal facilities, for the removal of their bark, logs and lumber there was nothing which they had in common for the purpose except the railroad and the engine. It may be assumed that their opportunities for ordering cars from the railroad company were equal, and if any exclusion of the plaintiff from the use of the engine was unduly caused by the defendant’s appropriation of it to their use to the prejudice of the plaintiff they were chargeable for the consequences. It must be assumed that the defendants for that cause were liable to the plaintiff to the extent and for the amount found by the referee. This upon the evidence was a question of fact for him to determine, and it is difficult to see in the evidence that he was required by it to find a liability for a larger amount, even if it be assumed that there was some, which would have permitted him to do so. The magnitude of the business in bark, logs and lumber, in which the parties were engaged and whieh they transacted there was large, and for that purpose during the period from about the first of September 1884 to early in January 1888, the number of car loads handled for them as per account render ed was about 11900 of which the plaintiff had 5377, the defendants 2946 and Hazelton the residue. The latter testified that he never failed to supply cars to the plaintiff when there were any to supply it with. The disputed questions of fact upon the subject of distribution of cars and of inequality of facilities, in view of the circumstances which the evidence tends to prove existed, must be deemed disposed of by the findings of the referee. The fact that the plaintiff had a large quaintity of lumber remaining piled in the woods at the close of the year 1887' does not necessarily require the conclusion that it had been denied the facilities to which it was entitled. The question is raised as to the right of .the plaintiff to place within the operation of the contract, in respect to facilities, the timber upon the lands purchased by Mr. Bullis, who was the president of the plaintiff, of Healy & Son, about three months prior to the time the defendants were relieved from the obligation of their covenants in the contract with the plaintiff. And it is urged that the denial of such rights by the defendants was in violation of that to which the plaintiff was entitled. This view is not supported. The contracts to which the defendants were parties had reference to the lands from which it was contemplated by their provisions the bark and timber would be taken, and to extend the facilities to other land and proportionally to the increase of the plaintiff’s lumber business, so occasioned, would evidently take the operation of the contract beyond the purposes in view and to the unanticipated prejudice of the defendants as well as Hazelton.

It is unnecessary to consider the further suggestion whether the plaintiff had such relation to the Healy lands (the legal title to which was in Bullis) as to enable it to assert such rights. The contract between the plaintiff and defendants provided that “the cost and expenses of operating and maintaining the railroad should be borne by the defendants, plaintiff and Hazelton pro rata, in proportion to the number of car loads shipped over it by each.” The plaintiff contends that the account of such cost and expense as rendered was unfair, to its prejudice; and that having from time to time been required to make payments in the proportion as charged, the plaintiff seeks reimbursement of the alleged excess so paid, over the amount with which it was justly chargeable. This claim of over payment is based mainly upon the grounds (1) that many of the cars furnished to the plaintiff were of less capacity than those had by the other parties, and no discrimination made on that account; and (2) that many carloads of logs handled by Hazelton were not included in the statement upon which division of expenses was made. The referee was upon the evidence permitted to find that there was no substantial support for the complaint founded upon the first proposition. It appears that the plaintiff shipped substantially no lumber until in the year 1886, that prior to that time cars were employed on its part mainly in hauling logs. For that purpose flat cars were necessarily used, the larger or gondola cars could not conveniently be employed for the purpose, They were the kind of cars ■suitable for the shipment of the defendant’s baric. And there is evidence tending to prove that the capacity as indicated by the label on the cars did not necessarily control in regard to the loads placed upon them.

As to the charge that car loads of logs taken by Hazleton to his mill were not included in the statements upon which expenses were apportioned, it may be said that his mill was located on the railroad between the place where his logs were skidded and Bradford, that he owned the log cars used by him, and they were, by the engine, «pushed from the mill up to the place where loaded and dropped down to the mill by gravity without aid of the engine, and that the lumber manufactured from the logs was put on cars and drawn by the engine to Bradford. The removal of his logs to his mill was not specifically included in the account, but the trips of cars loaded with lumber manufactured from them to Bradford were treated in the statement of the account as those with which he was chargeable as between him and the other parties. The distance from his mill to the place where his logs were skidded was short, from one to three miles, and a few minutes only were occupied in shoving the cars up to them on each occasion. This was done once a day most of the time and sometimes twice a day.

In May or June, 1887 Hazleton obtained an engine of his own, which was thereafter used upon his log cars and in switching about his mill. And it further appears that with a view to the payment monthly of the expenses of operating the road statements were made, and they furnished the means by which the proportions chargeable to the plaintiff, defendant and Hazleton respectively, were obtained and the basis upon which the monthly payments were made. There is evidence tending to prove that in the summer of 1885 the representative of the plaintiff in the business charged that Hazleton was moving cars not included in the monthly statements, thereupon he was invited to and did investigate the matter, and heard the explanation of Hazleton with which he expressed himself as satisfied.

The view taken by Hazleton of the manner of making up and presenting his use of the road in the monthly statements made for the purpose of distribution of the burden of its operation may not upon the evidence be deemed unreasonable.

These facts which the evidence tended to prove, may properly have had some bearing upon the disposition made by the referee of the plaintiff’s alleged claim for denial of facilities to which it was entitled in the business as well as upon the question whether or not it had paid more than its proportional share of the expenses chargeable to all the parties. Without expressing further reference to the evidence or amplifying reasons upon the subject we think the referee was reasonably permitted as he did to reach the conclusion that the latter claim of the plaintiff was not supported by the evidence.

No consideration is given to the release of the plaintiff to the defendant, of date December 29, 1887, which became operative in January following, as the construction and effect given to it by the referee are deemed conclusive upon this review.

In the rulings upon the trial there was no error to the prejudice of the plaintiff. And as viewed here none of the exceptions to the findings as made by the referee or to his refusal to find as requested were well taken. The udgment should be affirmed. All concur.


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    Eliza B. McGowan, App’lt, v. Supreme Council of the Catholic Mutual Benefit Association, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Associations—Assessments.
    Under chap. 496 of 1879, an assessment by an association is legitimate, where its payment is, in practical effect, a re-embursement of the respective branches preparatory to another call from the association for a like purpose.
    3. Same—Default.
    In such case, a member may be chargeable with default prejudicial to his relation to the association, though it, or some branch, has sufficient of his funds to pay the assessment.
    3. Same—Qualified receipt.
    The receipt of the assessment, after default, by an officer with qualified power, will not, in the face of a provision that such officer “shall not receive any beneficiary money from any suspended member, unless the same is tendered in open branch meeting,” does not constitute a waiver of the default and operate to re-instate the member.
    4. Same—Waiver or estoppel.
    The fact that it had been the custom of the association to receive assessments and dues after the designated time, and to adopt and ratify their payment, does not operate as a waiver or estoppel, and proof thereof is incompetent.
    Motion by the plaintiff for a new trial upon exceptions taken at Erie circuit and' ordered heard at general term in the first instance. This action was brought to recover $2,000 upon a beneficiary certificate issued to Bichard B. McGowan upon his life, and by its terms payable to the plaintiff, his mother. He died February 27, 1892.
    Verdict was directed for the defendant.

      Adolph Rebadow, for pl’ff ; Frank G. Loughlin, for def’t.
   Bradley, J.

The plaintiff’s son, Bichard B. McGowan, became a member of the Holy Angels’ Branch No. 7 of the defendant, and certificate of membership was issued to him May 7,1888. It was to the effect that he was entitled to all the rights and privileges of membership in the defendant and to participate in the beneficiary fund of the association to the amount of $2,000, which should at his death be paid to his mother, the plaintiff. The certificate, by its terms, was issued upon the condition that Bichard B. McGowan should in every particular, while a member, comply with all the laws, rules and requirements of the association.

The defendant was incorporated by chap. 496, Laws 1879, in which it was "provided that the corporation should have power to make such constitution, by-laws, rules and regulations as they should judge proper for regulating and fixing the amount and time of payment of all fees, dues and funds of the corporation and for its grand council and branches, and that they, respectively, as well as the defendant, should have the power of suspending any of its members (§ 3); that it should be lawful for the association to create, hold and disburse a beneficiary fund sufficient to pay all losses and expenses incident to the corporation, and for the relief of members and their families of the branches and grand councils (§ 6). And that such beneficiary fund as may be deemed suitable may be set apart and provided to be paid over to the families, heirs or representatives of deceased members, or to such person as they may, while living, have directed; and that the collecting, managing and disbursements as well as the term and manner of payments on the death of a member, shall be regulated by the constitution, by-laws, rules and regulations of the corporation (§ 7).

The alleged defense is that Bichard B. McGowan was in default in payment of assessment known as number 18, made in January, 1892, and, as the consequence, was suspended from the rights of membership and remained so at the time of his death. It appears that such an assessment was made, and that he became in default. The main question is whether as against him the assessment was legallj'' made. This is matter of defense. It appears that it was the custom to keep the amount of an assessment in advance, so far as it was practicable to do it, so that wdien a call from the grand lodge to pay beneficiaries on the death of members should be made, the branches could, with out the delay attending the taking in the assessments made on account of such deaths, remit the amount through the proper channel to the depository of the defendant for distribution among the beneficiaries. In practical effect, therefore, the payment of the assessments was a reimbursement of the respective branches preparatory to another call from the defendant for a like purpose.

This method was permitted by the fact that on initiation each member was required to pay the branch in which lie was received one beneficiary assessment. This initiation fee was paid by McGowan, and it may be assumed that he had paid all assessments made upon him prior to number 18. The plaintiff challenges that one for the reason that he by the payment of them including that paid at the time of initiation had already contributed an assessment to the payment of the beneficiaries on account of whom the call was made, and that he could not be legally assessed to contribute to a beneficiary fund which might be required by future deaths of members, because such an assessment was not within the provisions of his contract of membership. While it is true that he could not properly be assessed to pay the beneficiaries of members resulting from death which had not occurred. Such in fact was not the assessment which the plaintiff seeks to repudiate. The constitution of the defendant provides that “ The Supreme Recorder shall at the first of each month, or as soon thereafter as possible issue one or two assessments as may be required, to pay beneficiaries of deceased members then on record in his office, and shall notify the Grand Secretary of each Grand Council and the Recording Secretary of each branch in his immediate jurisdiction of the same, said notice shall contain the name of the deceased members, the number and location of the branch, date of death, cause of death, date of initiation, amount, of certificate, and shall also state the death if any upon said notice that will be paid with surplus ” (§ 7). It then provides for assessments and notice to contain the statements mentioned in $• 7. And further that all moneys so paid by members (§ 9) shall, be retained by the treasurer of the branch until call is made, and that the money so collected shall be remitted, etc. (§ 11). The assessment number 18 conformed to the requirements before mentioned, was dated January 6, 1892, the notice annexed to it was-dated January 11, 1892, and it was served upon McGowan by-mail on the day of the date of the notice. It may be observed that monthly assessments are provided for, and they are made to-pay the beneficiary of deceased members mentioned in it. Such-was the assessment in question. It thus necessarily appears that the beneficiary fund produced by the payment of the initiation', fees of members, is held as a reserve except so far as it may be-reduced by payments required to be made by surplus; this evidently is the policy of the corporation, as it is required to make an assessment early in each month to meet the demands of beneficiaries arising from deaths of members reported since that of proceeding month. The purpose for which assessment is made rather than the fund-from which it is paid is the important fact bearing upon its legitimacy7". And inasmuch as the branch is permitted to have- a reserve beneficiary fund originating from the payment of the initiation fee, it is quite unimportant for the purpose of the question-here whether compliance with the call upon it is delayed until the assessments are paid in, or in anticipation of the receipt of them,, the amount is paid from that fund and remitted without such delay.

The proposition made by the plaintiff’s counsel that inasmuch as the defendant or the branch of which McGowan was a member, had sufficient funds to pay the assessment he could not be chargable with default prejudicial to his relation to the defendant, is-not supported by the case of Knight v. The Supreme Council, etc., 24 St. Rep. 845, and Evans v. U. S. Mut. Accident Ass'n, 40 id. 878. There the assured had paid assessments illegally made and for which it was held they were entitled to credit by way of relief from those for the nonpayment of which the defendants sought to charge them with default.

In the present case McGowan had paid such sums only as the contract represented by the constitution and by-laws required of. him, and the assessment in its purpose and effect was legitimately made. The consequence, upon his relation as member, of default in payment of an assessment is declared by the contract as so represented, which provides that within twenty days after the date of the notice, which shall be mailed not later than five days after its date, each member must pay into the beneficiary fund of his branch the amount of the beneficiary assessment as stated in the notice; and that if the assessment is not paid' before the time of the next meeting of the branch ” after the expiration of said twenty days, he is hereby declared to be suspended from all the rights of the association, and if a member dies while suspended he is not entitled to participate in the beneficiary fund ” (sec. 10). McGowan did not pay his assessment within the time presented nor was it paid at the meeting of the branch which was held February 1, 1892. He was there reported as in default, and by force of the provisions of the constitution before mentioned he was suspended. Afterwards on February 23 the sister of McGowan handed to the person who was the financial secretary of the branch before mentioned, money sufficient to pay his assessment, and it was handed to him for that purpose. He gave no receipt for it, and he testified that he informed her that he could not, as he had no authority to do so, but would take it to the branch the following Monday and ask that the member be reinstated, and if that was done he would mail a receipt for the money. The sister says he gave her no reason for not giving her a receipt. This fact, however, may not be important. McGowan died before the next Monday, and the money was returned and left at the residence of the plaintiff.

The money was not received by the defendant, nor was the payment of it to the person who was such office]- effectual to support or restore his relation of membership. Hpon that subject the constitution for the government of branches of the defendant provides that the financial secretary ” shall not receive any beneficiary money from any suspended member unless the same is tendered in open branch meeting ” Art 6 § 5. This was one ■ of the conditions upon which McGowan became a member. While an unconditional receipt by the association of an assessment after the time has expired might constitute a waiver of the default and operate to reinstate the member, the receipt of it by an officer with qualified power, will not in the face of the provision before mentioned have that effect unless its payment to him is in some manner ratified by the association. There was in the case at bar-no waiver nor any estoppel by recognition of him as a member after his default in payment of the assessment, Ronald v. M. R. F. L. Assn. 132 N. Y. 378 ; 44 St. Rep. 407; 23 Abb. N. C. 271; Mut. P. L. Ins. Co. v. Laury, 84 Penn. 43; Rice v. N. E. Mut. Aid Sy. 146 Mass. 248.

It is seen that the payment of assessments within the time prescribed was by the contract made a condition of the continuance of membership and when that condition is not observed the default operates to suspend the relation, which the member had assumed to the association, and without some act on its part effectual as a waiver or having the effect to reinstate him, his death gives no right of recovery to his beneficiary upon the ■certificate, Lyon v. Royal Soc. of G. F., 153 Mass., 83, Harvey v. Grand Lodge, &c. 50 Mo. App. 472. The plaintiff offered to prove that it had been the custom of this branch of the defendant to re-receive assessments and dues of the expiration of the time designated in the constitution for the payment, that such payments were made to the financial secretary after members had been suspended and received outside the lodge, and were adopted and ratified by it, and that such member were not afterwards disfranchised of their rights in the lodge. And to the exclusion of the evidence exception was taken. The constitution provides for reinstatement of a suspended member and how it may be done. The evidence offered would not tend to prove tiiat McGrowan had any knowledge of any such custom or that he had ever indulged in that manner. The mere fact that it had been granted to others does not enable the plaintiff to effectually assert a waiver of the default on the part of the assured of whom she was beneficiary. The waiver asserted by the plaintiff is in the nature of estoppel, and to support it the plaintiff must be able to say that he was induced by the course of dealing of the defendant to rely upon it for the protection of his membership. The evidence offered would not support any claim of the plaintiff to waiver of estoppel. Appleton v Phœnix Mut. L. Ins. Co., 59 N. H. 541; 47 Am. R. 220; Crossman v. Mass. B. Assn. 143 Mass. 435. There was no error in the ruling and the verdict was properly directed for the defendant.

The plaintiff’s motion for a trial should be denied and judgment directed for the defendant on the verdict. All concur.


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    Charles S. Whitney, Resp’t, v. Sarah E. Whitney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Appeal—Conflicting evidence.
    A verdict, in an. action for divorce, upon conflicting evidence, where the evidence is sufficient, to support it, will not be disturbed
    8. Divorce—Questions stated.
    An order, based upon the stipulation of the attorneys, in an action for divorce, stating the question to he tried hy the jury, waives the right to have, preliminarily to the trial, any questions more specifically stated and settled.
    3. Appeal—Motion for new trial.
    When no motiom for a new trial is made or direction given for the exceptions to be first heard at general term, the defendant is in no position to raise on appeal, as against the verdict, any question upon the rulings in the reception or rejection of evidence at the trial, or as to the force or weight of the evidence in support of the verdict.
    4. Trial—Adjournment.
    A motion to postpone the trial, on ground of inability of party to attend, is addressed to the discretion of the court.
    Appeal from a judgment in an action for divorce entered on a verdict of Allegany circuit and on the decision of the court thereupon filed in favor of the plaintiff. The defendant also expressed in the notice of appeal the intent to bring up for review certain orders or rulings made preliminary to the trial.

      George Wadsworth, for app’lt; D. B. Richardson, for resp’t.
   Bradley, J.

The parties were intermarried in January 1878. This action was commenced in February 1889. And the plaintiff by his complaint alleges various acts of adultery of the defendant with one Ira II. Myers extending from in the year 1880 into the year 1888. The trial furnished a considerable bulk of testimony. There was no direct evidence of the defendant’s infidelity. The evidence which tended to support that imputation was made up of circumstances related by the witnesses on the part of the plaintiff, and taken as true, was sufficient to warrant the inference and lead to the conclusion that the charge made against her was true, but not conclusive in that respect. The evidence tending in that direction was contradicted by that of Myers and the defendant ; and so far as the facts of "that character related by the plaintiffs witnesses could come within the knowlege of those called on the part of the defendant, they were also contradicted or modified by the latter’s witnesses.

Thus was presented a conflict in the evidence as to the facts material to the main question; and while, as represented by the record, there was opportunity for the the jury, upon the whole evidence to have found that the charge against the defendant of marital unfaithfulness was not sustained, the question in that respect was one of fact for the jun^, and the evidence sufficient to support the verdict against her, Ferguson v. Ferguson, 3 Sandf. 307; Pollock v. Pollock, 71 N. Y. 137. And it was fairly submitted to them by the charge of the trial court. It is urged by the defendant’s counsel that the issues for the trial were not properly settled and for that reason the court erred in permitting the trial to proceed. The statute provides for the application to the court for the purpose ; and then when made the court must cause the issues or questions, to be distinctly and plainly stated on trial. Code G. P. § 970.

When the trial was moved on the part of the plaintiff, the defendant’s council objected to proceeding to the trial for reason that the issues to be tried by the jury were not properly settled. The objection was overruled and exception taken. The ruling of the court had in its support the fact that the attorneys for the parties had some time before made in writing a stipulation that “the issues to be tried by a jury in the above entitled action be stated as follows: Whether said defendant is guilty of the adultery charged in the complaint in this action to have been committed with the corespondent, Ira H. Myers, as therein alleged, and that neither party hereto may apply to the court upon this stipulation and without notice for an order stating and settling the said issues accordingly.” And afterwards upon the motion on the part of the defendant an order was made by the court stating and settling the issues to be tried in accordance with such stipulation. This was the situation when the plaintiff’s counsel moved the action for trial at the circuit. And it was by reason of such stipulation and order that the court permitted the trial to proceed. In this there was no error. It was essential to the trial to have the questions to be tried by the jury stated, Code C. P. § 823; and it was the right of the parties to have them settled for that purpose. Conderman v. Conderman, 44 Hun, 181; 7 St. Rep. 789. This the parties by their attorneys did by their stipulation pursuant to which the order was made, to that effect. They thereby waived the right to have preliminarily to the trial any questions more specifically stated and settled. The trial therefore was properly permitted to proceed, subject to the power of the court to state and submit to the jury any further questions of fact which properly or necessarily was for them to'determine; and this was done after the close of the evidence by submitting to them the question whether five years had elapsed since the discovery of the adultery, whether it was committed without the plaintiff’s consent, and whether he had voluntarily cohabited with the defendant since its discovery by him. This was upon the evidence merely a formal proposition to be disposed of by the verdict in the event the jury found that the main charge was sustained. While the defendant was not as matter of course entitled to a bill of particulars, she in the outset had the right to have the issues express the charges of misconduct on her part with a fair degree of particularity that she might be appraised of those she was required to meet. Wood v. Wood, 2 Paige, 108; DeCarrillo v. Carrillo, 53 Hun, 359 ; 25 St. Rep. 423, 425 ; Strong v. Strong, 1 Abb’s N. S. 237. But since the parties by stipulation and the order thereupon entered, as before mentioned, disposed of this matter, no question arises on this review whether or not the parties would otherwise have been entitled to or obtained a more specific statement of the questions of fact for the j ury. In view of the question for the jury so stated, the defendant’s counsel excepted to the charge of the court that it was not necessary to the result to find that all the charges of adultery alleged in the complaint was sufficient if they found that one or more of them had been sustained. And in answer to the requests of the defendant’s counsel to submit the question whether or not the defendant was guilty of the adulteries charged in the complaint as therein alleged, the court said “you may add to that, either or any of them.” The defendant’s counsel excepted. The question as submitted by the court to the jury in respect to the charge of adultery limited their inquiry to the place of residence of the parties. This certainly was not prejudicial to the defendant, and no exception was taken to it.

The view which the defendant’s counsel sought to urge seems • to have been that the form of the query as stated in the stipulation and preliminary order was such that it was essential to the support of the action that the jury find in the affirmative all the charges of adultery alleged in the complaint, which contained fifty numbered specifications or counts of such charges, or that there should have been a finding of the jury upon each charge contained in the complaint. The latter the court was not requested to have the jury do, and the former may be regarded as not within the reasonable import of the stipulation, as interpreted in view of its purpose in the action. It may be that if so requested the court would have submitted to the jury as many specific questions as to time and place as the defendant may have desired within the allegations of the complaint.

There is no support for the contention that there was a mis-trial. The action was tried upon the merits, and the verdict was such upon the main issues tried by the jury supplemented by the ■further facts found by the court as to properly lead to the judgment directed and entered. It was otherwise in Manning v. Monaghan, 23 N. Y. 539; where there was no sufficient verdict to permit adjudication of a result.

There was in the present case no judgment made for a new trial before the justice there presiding or at the term where the motion for final judgment was made, nor were exceptions directed by such justice to be heard at general term. For that reason the question arises whether the exceptions taken on the trial are here for review.

The statute provides that in actions triable by the court when & trial by jury of specific questions of fact is had an error in admission or exclusion of evidence or in any other ruling, may, in the discretion of the court on review be disregarded if the court is of the opinion that substantial justice does not require the granting of a new trial. And where the judge who presided at the trial neither entertains a motion for a new trial, nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried as the case requires. Code, Civ. Pro. § 1003.

This is somewhat analogous to the practice before the Code when feigned issues were awarded for trial by jury and verdicts taken to inform the conscience of the Chancellor.

The verdict might be adopted or disregarded by him, and a motion for a new trial of the issue was addressed to his discretion A new trial might not be directed merely on the ground of the reception of improper evidence or the rejection of that which should properly have been received if in the view taken by the court the result might not have been otherwise than it was. Apthorpe v. Comstock, 2 Paige, 482; Lansing v. Russell, 2 N.Y. 563.

And in its main features the practice in effect is substantially the same since the Code. Acker v. Leland, 109 N. Y. 5; 14 St. Rep. 23; Randall v. Randall, 114 N. Y. 499; 23 St. Rep. 845.

The cases before cited were in actions in equity in which the trial of issues by the jury is not a matter of right but is wholly within the discretion of the court.

The right trial by jury of the question of the alleged adultery in the present action was a right of the parties preserved to them by the constitution. Conderman v. Conderman, 44 Hun, 181; 7 St. Rep. 789.

And the statute in such case provides the manner in which the issues awarded shall be presented for trial and further, that, “The subsequent proceedings are the same as where questions arising upon the issues are stated for trial by a jury in a case where neither party can as of right require such a trial, except that the finding of the jury upon such issue or question so stated is conclusive in the action unless the verdict is set aside or a new trial is granted,” Code Giv. Pro. § 970. It may be observed that by this statutory provision, with the qualification in respect to the legal effect of the verdict, the practice following it is substantially the same as that relating to the feigned issues tried by jury in other cases.

Such was the rule of practice in suits for divorce before the Code, Mulock v. Mulock, 1 Edw. Ch. 14. And now in such cases a new trial of the issues so awarded will not be granted for other than substantial errors upon the trial. Forest v. Forest, 25 N. Y. 501, 510 ; Vermilyea v. Palmer, 52 Id. 471; Foote v. Beecher, 78 Id. 155, 157.

And as regards the review of trials of such specific issues awarded for trial by jury, preliminary to the final trial, determination and disposition of the other and entire issues by the court, the practice-as it formerly existed in Chancery is substantially preserved and declared by the provisions of the Code before referred to, and with the qualification before mentioned, and that contained in § 1003 of the Code, is the same in all cases where feigned issues are tried. And in such case as the trial is a preliminary one to the final hearing and determination of .the action, which is made by the decision of the court, a motion for a new trial of such feigned issues can in the first instance be made only before the judge who presided at the trial or at the term where the motion for final judgment is made or the remaining issues of fact are tried, unless the judge directs that‘the exceptions be heard at general term, Code Civ. Pro. § 1003. And in case the motion was not so made or directed to be heard the party to whom the verdict, is adverse, is by the practice prescribed in such case, deemed to have acquisced in the verdict upon such issues. Ward v. Warren, 15 Hun, 600; Chapin v. Thompson, 80 N. Y. 275; reversing 18 Hun, 446; 23 Hun, 12, 15; 89 N. Y. 270, 274. As no such motion for a new trial was made or such direction given for it to be heard, the defendant is in no position to raise here as against the verdict of the jury any question upon the rulings in the reception or rejection of evidence at the trial of the issues submitted to them or as to the force or weight of the evidence in support of the verdict.

Nevertheless a careful examination of the evidence and of the exceptions taken by the defendant to the rulings upon the admissibility of evidence on the trial before the jurjq leads to the conclusion that tliere was no error in that respect prejudicial to the defendant. At the time that the issues were moved for trial before the jury the defendant’s counsel upon affidavits moved for a postponement of the trial founded upon the alleged fact that she was in ill health and unable to attend the trial at that time. This motion was addressed to the discretion of the court and was denied. The defendant was present and testified as a witness on the trial. We think there was no such abuse of the discretion of the court in the denial of the motion as to require or justify relief on this review. Borhy v. White & W. Mf'g Co., 34 St Rep. 987.

So further question seems to require the expression of consideration. The j udgment should be affirmed.


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    The People, Resp’t, v. Albert G. Vosburgh, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    Excise—Repeal.
    Chap. 679 of 1887 is not superseded by the provisions of chap. 401 of 1898.
    Appeal from judgment of conviction in the court of sessions of Wyoming county.

      Myron H. Peck, for app’lt; George W Botsford, district attorney, for resp’t.
   Bradley, J.

The charge in the indictment was that Vosburgh at town being a town was not at the time of such sale a license granted and issued permitting the sale of such strong and spirituous liquors, wine ale or beer in quantities less than five gallons at a time, did without lawful authority, unlawfully and wilfully sell and deliver in quantities of five gallons and upwards at a time, strong and spirituous liquors, wine, ale and beer” (naming the person to whom such sale was made) “ contrary to the statute in such case made and provided."

The defendant demurred to the indictment on the grounds: (1) That the facts stated in it did not constitute a crime. (2) That the indictment contained in it facts constituting a justification for "’the acts charged. ■

The court having overruled the demurrer and denied motion of the defendant (who had refused to plead to the indictment) in arrest of judgment, directed judgment that he pay a fine of $100 and stand committed until paid. Exceptions were taken by the defendant.

The indictment was founded upon the statute which provides that “ It shall not be lawful to sell strong or spirituous liquors, wine, ale or beer in quantities of five gallons or upwards at a time, in any town, village or city in the state in which there is not in force at the time of such sale, a license permitting the sale of such strong and spirituous liquors, wine, ale or beer in quantities less than five gallons at a time,” and that a sale in violation of such provision be a misdemeanor Laws. 1887, ch. 679.

This is the only statute of the state to which our attention has been called making it unlawful to sell strong or spirituous liquors etc. in quantities of five gallons or upwards at a time, to be drunk or used elsewhere than on or about the premises where sold.

And the question is, whether or not that statute was superseded by the provisions of chapter 401 of Laws of 1892, entitled “ An act to revise and consolidate the laws regulating the sale of intoxicating liquors.” While this title imports an act to embrace within its provisions the entire subject to which it "relates, it may be observed that it is there declared that the act “shall be known as the excise law and shall supersede the provisions of any special or local law in conflict therewith,” § 1; and that the laws enumerated in the schedule there annexed are repealed, § 45. The legislative intent was thus indicated to the effect that some existing provisions of the statute upon the subject of excise might still remain notwithstanding the provisions of the act of 1893. Amongst the laws mentioned in the schedule so referred to in and annexed to it is not included chapter 679 of Laws 1887, before mentioned. And although it is not expressly repealed if it appears by the provisions of the late statute that they were intended to cover the subject matter of the former one, the latter will be deemed by implication to have been repealed or superseded. Matter of N. Y. Institution, 121 N. Y., 234; 30 St. Rep. 921. It is provided by the later act that no license granted shall authorize the sale of intoxicating liquors in quantities of five gallons or upwards at a time. L. 1892, ch. 401, § 19. sub. 7. MTo provision for license to sell in such quantity at a time, so far as we are advised, has been in any statute of this state, and no necessary purpose of that before mentioned of sub. 7 of § 19 in the act of 1892 is apparent. The prohibition in respect to sales in quantities of five gallons or more at a time, has relation to intoxicating liquors to be drank upon the premises where sold and places appurtenant or contiguous thereto. Id. §31. This was the effect of the prior statute. L. 1873, ch. 549, §2. It is urged by the learned counsel for the defendant that the provisions of the act of 1892 taken together manifest the legislative intent to restore the traffic in respect to the sales of five gallons or upwards to the status as it existed after the passage of the act of 1873 and before that of 1887. And reference is made to sub. 4 of the act of 1892, providing for license to sell by the quantity not to be drank upon the licensed premises, and to sub. 7 of the same section in connection with the provision of § 31 relating to sales in quantities of five gallons or more at a time. The latter is the only restriction in the act applicable to sales in such quantities, and by it they are illegal only when made to be drank or used at the place or in the specified locality of the sale.

The provisions of the act of 1892, standing alone, would have substantially the same effect as those of § 2 of the act of 1873, in so far, that no legal restriction other than that last mentioned would exist to interrupt sales of five gallons or more at a time.

But it is not seen that the provisions of the act of 1892 have, by implication crowded out of operation those of the act of 1887. They may stand harmoniously together, and as the latter act was in force concurrently with that of 1873, it in like manner may remain operative consistently with the provisions of the later act. They do not furnish any substitute for it. It must be assumed that the act of 1887 was purposely omitted from the laws repealed by the act of 1892. And, therefore, it cannot be said that there was a legislative intent to supersede its provisions.

The judgment should be affirmed. All concur.


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    Stephen Mahoney, App’lt, v. The Vacuum Oil Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

      1. Master and servant—Duty of former.
    The master must use due care to provide his servant suitable implements for his use and a safe place in which to perform his work, and is not liable to him for the consequences of the negligence of a co-employe, unless he, with knowledge of his unfitness, employs or continues him in his service.
    3. Same—Who co-servant.
    Whether an act or omission, having relation to the service of the employes, is that with which the master is chargeable is dependent upon the nature of it, and not upon the grade in the service of the person whose act or default may come in question between the master and an employe.
    8. Same. ’
    Where the master has furnished sufficient competent help and materials for the work, he is not responsible for the use made of the materials or for the negligence of any of the help engaged in its performance.
    Appeal from order denying plaintiff’s motion made on the minutes, at the Monroe circuit and special term for a new trial.
    The plaintiff by his action sought to recover damages for personal injuries suffered by him while in the service of the defendant, under the following circumstances.
    He with others in the employ of the defendant was engaged in putting a tank weighing about six tons into a hole about six feet in diameter cut through the floor of the second story of the building and on to a supporting iron girder about eight feet below the floor. For that purpose the lower end of the tank was placed so as to project some over the hole in the floor, and a two inch rope was put through a hole in the bottom of the tank to be there securely fastened, with a view to raising and placing the tank by means of a tackle above. For the purpose of doing the work of putting the rope through and securing it there the plaintiff and •others were on the plank. It broke and he was precipitated to the bottom of the building and sustained the injuries complained of. He was nonsuited at the trial.

      Eugene Van Voorhis, for app’lt; William F. Cogswell, for resp’t.
   Bradley, J.

The general principles applicable to the relation of employer and employe in respect to the duties to by the former for the safety of the latter while serving in such relation are well settled. And they may be embraced in the general proposition that the master assumes to his servant the duty of using due care to provide him suitable implements for his use and a safe place in which to perform his work; and that the master is not responsible to him for the consequence of the negligence of an employe unless he with knowledge of his unfitness employs or continues him in the service. While this doctrine is recognized by the plaintiff’s counsel he contends that the defendant failed to perform the duty it owed to the plaintiff in that it did not furnish him a place of safety to perform the work in which he was engaged at the time in question; and that his injury was the consequence of such default or neglect on the part of the defendant or with which he was chargeable.

If the placing of the plank over the hole in the floor was within the duties assumed by the defendant, the plaintiff’s case was-improperly withheld from the jury. The hole about six feet in diameter had been cut in the floor, the tank was placed there to be hoisted, dropped into the hole and upon the supporting girders below. This was the situation when the plaintiff and the other employes of the defendant proceeded to put the tank in the place so provided for it. To accomplish it a rope and tackle were brought into requisition. To draw the rope through the hole in the lower end of the tank and there fasten the end of it it was necessary for some one or more of those engaged in the work to occupy a place over the hole in the floor, and to enable that to be done the plank was picked'up and placed over it by the foreman. The plaintiff and two other workmen including him were standing upon it at work securing the end of the rope. The fourth man, Patterson, stepped upon the plank, it broke and the plaintiff with some others fell about eighteen feet to the bottom of the building and was injured.

It was a hemlock plank nine feet long, one foot wide and two inches thick. It was so smeared with dust or dirt, as to conceal its defective quality from observation. The plank was brought into requisition as an expedient for the time being in the performance of the work ®f setting the tank in its place.

There were other planks about there which the men might have used as the means of strengthening the support if they had chosen to do so. The floor was a safe place to work. The hole was-rendered dangerous only by want of care to avoid falling through it. And so far as it was necessary for the accomplishment of the work to get over it the means were in the planks lying about there to give safety and protection from danger.

In such case it would seem that the act of making use of the-the appliances for such purpose is within the details of the work and that of the coemploye rather than of the master of his representative Hogan v. Smith, 125 N. Y. 774 ; 35 St. Rep. 870 ; Oregan v. Marston , 126 N. Y. 568; 38 St. Rep. 428.

The fact that the employe who placed the plank over- the hole in the floor was foreman in the work has no particular significance upon this question. Whether an act or omission having relation to the service of the employes is that with which the master is chargeable is dependent upon the nature of it, and not upon the grade in the service of the person whose act or default may come in question between the master and an employe. The relation of the foreman to the other workmen was that of coemploye except as to such acts performed by him as were embraced in the duties of the defendant, Loughlin v. State of New York, 105 N. Y. 159 ; 6 St. Rep. 826; Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359.

The line of distinction may seem narrow- between some cases where liability has and has not been sustained, founded upon the relation of master or coemployes to the causes which were the subject of complaint. In Hogan v. Smith, the plaintiff sought to recover on the alleged ground that the defendant had neglected to furnish a safe place for the plaintiff's intestate to do the work required of him in the service. The court held that the omission, of the employes to make use of the materials and means at hand for their own safety was their fault and not that of the defendant; and that it was their privilege and duty to use the means and materials to do the work in their own way. And such was the doctrine upon which was determined in Cregan v. Marston, where the death of the plaintiff’s intestate was caused by the continued use of a rope attached to a derrick after it had become so worn as to be unsafe while there were other ropes from which they might have taken one to supply its place. It was held that it was in the details of their duty to note the wear of the rope and by observation to ascertain when its condition became such as to require the substitution, of another for the safety and efficiency of the service. The several cases cited by the plaintiff’s counsel may in support of those before mentioned be distinguished from them. In Benzing v. Steinway & Son, 101 N. Y. 547, the defective platform was provided for the work in view, and the plaintiff was called from his other service to perform upon the platform some work not in the line of bis general employment. It was held the defective condition of the platform, which caused the plaintiff’s injury was chargeable to the negligence of the defendant although it was placed there by another in his service.

In Kranz v. Long Island Ry. Co. 123 N. Y. 1; 33 St. Rep. 46, the plaintiff’s intestate, an employee of the defendant, who by direction entered a trench, which had been opened, to clean out under ground water pipe, and while doing it the earth caved in causing his death. It was held that the defendant owed him the duty of providing him a reasonably safe place to perform the work he was directed to do; and that he had the right to assume that it had been made reasonably safe.

.Similar to this was the case of Wannamaker v. City of Rochester, 44 St. Rep. 45; 137 N. Y. 529. In McLean v. Standard Oil Co., 50 St. Rep. 626, the defective scaffold on which the plaintiff was at work when it fell causing his injury, was erected by carpenters in the service of defendant preparatory to the work in which the plaintiff was engaged at the time it gave way. In none of those three cases was preparation of the places for the work to be done within the details of the service in which the persons who suffered the consequences of the defective and unsafe conditions were engaged. A like principle in some phase is that upon which the other cases cited on the part of tile plaintiff were determined, Pantzar v. Tilly F. Iron Mining Co., 99 N. Y. 368; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id. 374; 12 St. Rep. 9. The present case is distinguished from those where the master has been held liable to bis employe for not furnishing a reasonably safe place for him to work, in the fact that the plank which gave way was in the, use made of it an instrumentality employed at the time in and of the work being performed and as part of it. The place of the service was in the building upon the second floor of it which was safe. The means used to perform it were those appropriated by the employes as such. Butler v. Townsend, 126 N. Y. 105 ; 36 St. Rep. 508. And the defendant having furnished sufficient help with materials for the work was not responsible for the use made of them or for the negligence of any them engaged in its performance. The fault was theirs or that of some one or more of their coemployes. Hussey v. Coger, 112 N. Y. 614; 21 St. Rep. 848 ; Cullen v. Morton, 126 N. Y. 1; 36 St. Rep. 359. It is urged with some force that as Patterson the defendants’ superintendent directed the plaintiff to go upon the plank, which resulted in his injury, the defendant is chargeable with the consequences, and in support of that proposition reference is made to McGovern v. Central Vermont R. R. Co., 123 N. Y. 280; 33 St Rep 416, McCampbell v. Cunard Steamship Co., 69 Hun, 131; 53 St. Rep. 330.

In the former of these cases the plaintiff’s intestate having been directed to do so by the defendants’ superintendent went into a grain elevator to clean it out upon the assumption that the grain had been discharged from it. While he was there some of the grain which had become heated, thus rendered cohesive' and adhered to the elevator, came down upon the plaintiff’s intestate causing his death. The place in which he was directed to perform the work was for that reason unsafe; and the court held that inasmuch as by the exercise of care on the part of the defendant the condition in that respect may have been ascertained the question of its negligence was for the jury. In that respect the defendant was clearly chargeable with the direction of its superintendent to the intestate. In the Campbell Case there was a defective condition, a situation of a skid extending from the defendant’s vessel to the dock making a slide on which the plaintiff was employed and directed by the defendant’s superintendent to remove the cargo from the ship by means of a truck. In the attempt to do this the plaintiff by reason of the defective connection of the skid with the dock was injured. And it was held that the place where he was put to do the work was unsafe and the danger one which he did not assume.

It may be observed that those places were unsafe and the conditions which made fhem so where not produced in the progress of the work in which the injured employes were engaged and not a detail of their service in its performance. And although Patterson was the alter ego of the defendant in the present case in doing whatever required that relation his grade in the service of the defendant was dependent upon that in which for the time being he was engaged. When therefore he was at work with the others at the time in question he was a co-employe, and his contribution by his acts and direction in the details of the work were not those of the master or for which the latter was responsible to those who were engaged there with him in its performance. Crispin v. Babbitt, 81 N. Y. 516 ; Cullen v. Norton, 126 Id. 1; 36 St. Rep. 359.

If there views are correct it follows that to whatever negligence the injury to the plaintiff may have been attributable it was that of the co-employes or some one or more of them, and was within the hazard assumed by him in the service.

With a view as is said of showing that the foreman was incompetent for the position assigned to him a witness was by the plaintiff’s counsel asked : “ Did you observe his manner of doing work ?” The evidence was excluded and exception was taken. It may be that the ruling was made upon the ground that no such defense was alleged in the answer, as that was a specified ground of the objection, but however that may be the man Schoenfilder was in this work and at the time in question acting in the capacity of a co-employe merely, and there was no purpose indicated in the evidence offered, tó prove anything affecting his condition, character or habits which rendered him unfit for service or prejudicial to his relation as such co-employe.

It therefore seems that without reference to the question of pleadings the plaintiff was not prejudiced by the exclusion of the evidence.

No other question requires consideration. The order should be affirmed. • All concur. Except Haight J., not sitting.