text:
    William H. Camp, Resp’t, v. Nicholas Mehrhoff et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Reference—Contract.
    Where the referee, in an action upon a written contract, put a construction upon the instrument consistent with the document itself, and in harmony with the circumstances, the subject matter and the relations of the parties to it, his conclusion will not be disturbed on appeal.
    Appeal taken by James J. Treanor, Frank P. Treanor and the Yale Safe & Iron Company, three of the defendants, from judgment entered in favor of the plaintiff upon report of referee to whom it was referred to hear, try and determine the issues; the defendant, Mehrhoff, not joining in such appeal.

      Durnin & Hendrick (B. Yates, of counsel), for app’lts; H. M. Hitchings, for resp’t.
   McAdam, J.

Every contract is to be construed so that it may have effect according to the intention of the parties, if that can be done consistently with the rules of law. Parshall v. FJggert, 54 y. Y, 18. It is generally competent and often indispensable in the construction of contracts to refer to the subject matter and other circumstances, and consider what the parties saw and knew, in order to ascertain their meaning. Clark v. N. Y. L. I. Co., 64 N. Y, 33. In interpreting agreements, courts should look at the surrounding circumstances, the situation and relations of the parties, and the subject matter of their negotiations. Bk. of Montreal v. Recknagel, 109 N. Y., 482 ; 16 St Rep., 398. The referee, after availing himself of these side lights, put a construction upon the instrument consistent with the document itself and in harmony with the circumstances, the subject matter and the relations of tne parties to it The evidence satisfactorily sustains his findings on the facts as to these matters, and as there was a conflict in the proofs, there is no valid reason why the conclusions necessarily following from the facts found should be disturbed.

This applies as well to the rights and obligations of the parties in respect to the item of $866.66, allowed by the referee, as the plaintiff’s right to the ten per cent commission, which, under the written agreement, according to the construction placed upon it by the referee, was to be paid whether the contract with the corporation of Long Island City “ resulted in a profit or loss.” The other issues upon which the result depended were also the subject of conflicting evidence and the referee’s finding upon the facts, being satisfactorily sustained by the proofs, should also be accepted as conclusive in respect thereto upon this review. The facts are so numerous and depend for their intelligent understanding upon so many contingencies that a lengthy discussion of them in an opinion would hardly make interesting reading. Suffice it to say that the facts established and found sustain the conclusion reached by the learned referee, and that the judgment entered upon his report must be affirmed, with costs.

Freedman and Gtldersleeve, JJ., concur.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Louis P. De Bautte et al., Resp’ts, v. Herman A. Curiel et al., App’lts.

      (New York Superior Court, General Term.

      Filed January 3, 1893.)

    Pleading—Money loaned.
    In an action for money loaned and advanced, the contention of defendants that the money was borrowed for an illegal purpose is in the nature of new matter, avoiding a contract, and must he pleaded.
    Appeal from a judgment entered on a verdict of a jury in favor of the plaintiffs, and from an order denying a motion for a new trial.

      E. J. Myers, for app’lts; M. S. Gutterman, for resp’ts.
   McAdam, J.

The action is for “money loaned and advanced to the defendants,” a co-partnership firm doing business under the title of “ The United Brewers’ .Company.” The answer admitted the partnership of the defendants under this title, and denied the other allegations of the complaint It appears by the evidence that the defendants were an importing wine house and .that their business was to sell different brands of wine.

One Farmer was a traveling salesman employed by the defendants, and was in the habit of spending large amounts of money to boom their wines. About the end of April or beginning of May, 1890, Farmer, as the representative of the defendants, appointed the plaintiffs agents in New Orleans for the St. Marceaux, a brand of champagne controlled by the defendants.

It also appears that the defendants told Farmer if he ran short of money to draw on them for whatever was needed to meet requirements, and that his drafts would be honored. Acting on this authority Farmer had a succession of transactions in which money was borrowed and drafts drawn, and in every instance but the present these drafts were honored and the moneys repaid.

There is evidence also that Farmer’s authority had been revoked before the loan in suit was made; but there is further evidence ■showing that, notwithstanding this so called revocation, the defendants had evidently experienced a change of mind, for they ■continued to honor Farmer’s drafts for loans made up to the time ■of the very transaction which gives rise to the present litigation.

The case, therefore, turned upon the question whether at the time the loan was made Farmer had subsisting authority to contract the obligation and bind the defendants for its performance. This question was fairly submitted to the jury, who found for the plaintiff, upon evidence satisfactorily sustaining the finding. This practically disposed of the entire case, and there is nothing left but to consider the exceptions taken, many of which are trivial and without merit.

The defendants contend that the money was borrowed by Farmer for an illegal purpose. Such a defense is in the nature of new matter avoiding a contract, and must be pleaded. May v. Burras, 13 Abb. N. C., 384; Hopkins v. Ensign, 11 St. Rep., 85 ; Honnegger v. Wettstein, 94 N. Y., 252; Milbank v. Jones, 127 id., 370 ; 38 St. Rep., 910 ; O' Toole v. Garvin, 1 Hun, 92, and kindred cases.

We have failed to discover any error in admitting or excluding evidence, and the judgment and order appealed from must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


author: McAdam, J. Gildersleeve, J.

text:
    Andrew J. Toomey, App’lt, v. The Delaware, Lackawanna & Western Railroad Co., Resp’t.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Malicious prosecution—Damages.
    Plaintiff, while riding on defendant’s train in the state of New Jersey, got into a dispute with the conductor over his ticket, and at Hoboken the latter caused his arrest under a statute of such state which authorizes the arrest and detention of any person who attempts to travel in a railroad car without having paid his fare. Plaintiff was brought before the recorder and discharged within a few fninutes. In an action for damages for malicious prosecution, the jury found for plaintiff, assessing his damages at six cents. Held, that a new trial upon the ground of inadequate damages would be denied.
    Appeal by the plaintiff from a judgment entered on a verdict in his favor, upon the ground of inadequate damages, and from an order denying a motion for a new trial.

      Robert Sewell, for app’lt; Hamilton Odell, for resp’t.
   McAdam, J.

On September 27, 1890, the plaintiff purchased an excursion ticket over defendant’s road from Barclay street, Hew York, to Orange, Hew Jersey. The ticket was in two colors, the white end running from Hew York to Orange, and the red end from Orange to Hew York. The plaintiff left the train at Brick Church, before reaching Orange, and some hours later took a train at Brick Church to return to Hew York. The assistant conductor of the incoming train asked the plaintiff for his ticket, and the plaintiff handed him a red ticket, which was punched and returned to him. Before reaching Hoboken, plaintiff was asked to surrender his ticket and offered the conductor a white ticket, which had been punched with punch not in use on that train. The conductor refused to accept the ticket, and a dispute followed, of which conflicting versions are given by the different witnesses. A statute of Hew Jersey authorizes the arrest and detention of any person who attempts to travel in a carriage of any railroad company without having paid his fare and with intent to avoid payment thereof. The offender forfeits to the company a sum not exceeding five dollars, which “ fine ” may be imposed u by any justice of the peace before whom such person shall be brought on complaint made on oath or affirmation, and after a summary hearing of the facts and circumstances.”

When the train reached Hoboken there was another wrangle. The conductor tried to convince the plaintiff and his friends that thay were mistaken in saying that the white ticket with the 41 spade ” punch mark had been punched on his train ; but. there was an indisposition to listen. The defendant’s night despatcher called a police officer and requested him to take the plaintiff in custody. The plaintiff was taken to the police station, a distance of from 500 to 700 feet, where he and his two friends were arraigned before the captain of police, and after a delay of about five minutes were taken before the recorder of Hoboken in the same building.

Ho written or sworn complaint was made. Ho oath was administered to the conductor or to the defendants.

After hearing the conductor’s statement the parties were discharged for reasons that were stated by the recorder in his testimony.

The whole affair, from the time the train reached Hoboken, was ■over in half an hour or less.

The charge made before the recorder was that of violating the state statute before referred to, and the plaintiff was discharged upon the ground that there was no dishonest intention on his part, simply a mistake in getting off one train and going on .another.

It will be observed that the arrest was by virtue of an express ■statute, and the trial judge, therefore, properly sent the questions ■of malice and want of probable cause to the jury, and they found for the plaintiff, assessing his damages at six cents.

There is no precise rule by which damages are to be measured in a case of this character. Much is left to the good sense and discretion of the jury, and the damages when fixed by them in •actions of tort are rarely disturbed, unless so manifestly excessive or inadequate as to indicate bias or predjuce on the part of the jury.

It was evident throughout the trial that the trouble had its origin in an honest mistake, of which the plaintiff was the responsible author; that neither party intended to injure the other, and that what was done from beginning to end was through honest motives and as a consequence of an innocent but unfortunate error.

In such a case it would indeed be difficult to say that the jury were absolutely bound to give substantial damages, and that a verdict for nominal damages only proved either bias or prejudice on the part of the jury. The result shows that the peculiar circumstances of the case 'had much to do with the amount of the verdict, and that it evidences the conscientious’ conclusions of twelve good, and lawful men from the vicinage.

Wavle v. Wavle, 9 Hun, 125, was an action of slander. The verdict was for six cents. A new trial -was granted by the trial court on the ground that the damages 'were insufficient. On appeal the order granting a new trial was reversed, the court saying: “ The amount of damages to which plaintiff is entitled was not fixed, definite or certain, nor was it capable of being made so by any process of computation. The damages were w.holly in the discretion of the jury, and not controlled as to amount by any evidence given upon the trial. The appearance, character and conduct of the parties and witnesses, the probabilities surrounding the transaction, the nature of the slander, and the injury done, all constituted elements to be considered by the jury. This has been done with the result seen. Whether such verdict is the result of a compromise of differences among jurors, or whether it expresses the judgment of each juror, we cannot tell. Such results in such cases are within the experience of every judge. Ordinarily, such verdicts are deemed expressions of the jury that each party is more or less in fault, and that neither shall profit thereby. In cases like slander, libel and malicious prosecution it is well to have an end of litigation as early as possible. Such actions generally involve more of passion than of principle or actual damage. So, when such a case has been once fairly tried and considered by a jury, its decision ought, generally, to be conclusive and final. * " * In the absence of any evidence of dishonesty or misconduct on the part of the jury, we think its verdict ought to stand.”

The verdict certainly vindicates the plaintiff, as far as vindication was necessary. It did not attempt to assess the value of his character, which, in the general sense of the term, was not on trial; but it, in effect, held that, though filled with honest intentions, the plaintiff had made a mistake, which he failed to make the defendant’s conductor properly understand and believe, and the latter, in consequence, was permitted to act upon appearances, and, having done so without malice or evil intent, the jury were essentially the judges ofjihe amount of compensation which the defendant ought to pay, under the circumstances; and there being no merit in the exceptions, the judgment and order appealed from must be affirmed, with costs.

Gildersleeve, J.

In my opinion the evidence showed the damages to be substantial and not nominal. Had I been a juror, I should have been in favor of awarding something more than nominal damages. I agree, however, that the measure of damages was entirely within the discretion of the jury. The evidence does not fix, with certainty, any sum below which the jury would not be warranted in going in making an award.

To the authorities on this point, cited by my learned associate, may be added Henderson v. McReynolds, 38 St. Rep., 734.

The jury acted within its province, and its verdict should not be disturbed for the reason that the court entertains an opinion not in accord with that of the jury on the question of damages.

I cannot agree with, my learned associate when he says: “ It was evident throughout the trial that the trouble had its origin in an honest mistake of which the plaintiff was the responsible author.”

Under the evidence the jury were justified in placing the responsibility of the acts that were the inception of the trouble with either party. The evidence leads me to believe they originated with the defendant’s servants. ■

I agree in the result reached by my learned associate.

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


text:
    Benjamin F. Gerding, Resp’t, v. John B. Haskin et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    1. Bbokebs—Commissions—Charge.
    In an action to recover broker’s commissions where the broker had found a purchaser for the real estate at the price fixed by defendants, but the latter had refused to consummate the sale, the trial judge refused to charge that “if the jury accepted defendant T.’s testimony that no commission should be paid until the deed actually passed no verdict could be rendered for the plaintiff.” Held, that the judge properly refused so to charge, as he had already instructed the jury that “ although a broker becomes entitled to the usual commissions when he brings a purchaser to the owner who is able and willing to take the property, this may be varied by express agreement.”
    2. Same.
    Such request of defendant was framed in a form which could not have been charged even though the charge given had not been made, as it asked the court to charge that if the jury believed a witness they must find in a certain way.
    Appeal by the defendants from a judgment entered on a verdict rendered in favor of the plaintiff, and from an order denying a motion made by the defendants for a new trial.

      Abel Crook, for app’lts; C. Bainbridge Smith and J. Tracey Langan, for resp’ts.
   McAdam, J.

action is to recover brokerage for procuring a purchaser for property of the defendants (owned as tenants in common), and known as the Ryer farm at East Tremont, N. Y. The plaintiff alleged and proved his employment to sell for $110,000. (2) That lie found purchasers willing to buy on the owners’ terms, and (3) that the defendants ultimately refused to consummate the sale. The jury found for the plaintiff andawarded him the usual brokerage of one per cent. The conditions upon which brokerage is earned are not disputed, and the law in regard thereto too well settled to require re-iteration. It is sufficient to say, without recapitulating it, that the evidence sustains the finding of the jury, a circumstance which-requires us to consider with care the specific objections urged against the recovery. First'. It is claimed that one tenant in common cannot bind his co-tenant to sell property or perform any duties in respect thereto. Van Doren v. Balty, 11 Hun, 241; Bowman v. Travis, 54 N. Y, 640; McLean v. McLean, 96 id., 655 ; Tuers v. Tuers, 100 id., 200. The answer to this is that the evidence sufficiently shows a joint employment by both defendants. Second: That the proposed purchaser must be able, as well as willing, to perform. Duclos v. Cunningham, 102 N. Y, 678; 2 St. Rep., 13. This is true, but ability to perform is presumed in the absence of evidence to the contrary, and there was no proof of inability here: Hart v. Hoffman, 44 How. Pr., 168. Third: The defendants rely upon two exceptions; one, to the refusal to dismiss the complaint, which is without merit, because the case on the conflicting evidence presented questions which the jury alone could lawfully determine; the other is to the refusal of the trial judge to charge that “ if the jury accepted the defendant Tappeu’s testimony, that no commission should be paid until the deed actually passed, no verdict could be rendered for the plaintiff.”

The trial judge had already instructed the jury that although a broker becomes entitled to the usual commissions when he brings a purchaser to the owner who is able and willing to take the property, “ this may be varied by express agreement.” This was stating the law as clearly as the defendants were entitled to have it put. The defendants framed their request in a form which could not be charged, for, as the court of appeals said, in Dolan v. D. & H. C. Co., 71 N. Y., 285, “it is not proper to refer to the testimony of a witness, and ask the court to charge that if the jury believe the witness, they must find in a certain way, or that a certain conclusion follows,” as it prevents the jury from determining what facts are established by the witness’ evidence. See, also, McGrath v. Met. L. I. Co., 6 St. Rep., 376. This disposes of all there is to this case, and as no error was committed to the prejudice of the defendants, it follows that the judgment and order appealed from must be affirmed, with costs.

GlLDERSLEEVE, J., COnCUl’S.


text:
    Antonio Jaquinto, by Guardian, Pl’ff, v. The Broadway & Seventh Avenue Railroad Co., Def’t.

      (New York Superior Court, General Term,

      Filed January 3, 1893.)

    Negligence—Street railways.
    In an action against a street railway company to recover for injuries sustained by plaintiff in being run over by one of defendant’s cars, it appeared that plaintiff, who was four years old, at half-past five o’clock in an afternoon in January, was playing in the street with other children, carrying sawdust from the sidewalk and putting it between the car tracks, and was_ struck and run over by a car which was going at a regular pace. The accident did not occur at a crossing, and no evidence was introduced to show that the driver was incompetent or omitted any care, and the evidence tended to show that the child ran against the car and was thrown down and run over. Held, that the plaintiff was properly nonsuited.
    Motion by plaintiff for a new trial, after the dismissal of his complaint at trial term, where the trial judge ordered the exceptions to be heard in the first instance at general term.

      Ullo, Ruebsamen & Cochran, for pl’ff; Root & Clarke, for def't.
   McAdam, J.

The plaintiff, by his guardian, sues to recover $25,000 damages for injuries sustained by being run over by one of the defendant’s cars, January 15,1889. The plaintiff was then four years of age, and at 5:80 o’clock in the afternoon was playing with other boys in Thompson street near Broome, where he met with the accident of which he complains. The trial judge dismissed the complaint, upon the ground that there was no proof whatever of negligence upon the part of the defendant’s driver.

The witnesses all agree that the child was playing about the street with other children; that they were carrying sawdust from the sidewalk, and putting it between the car tracks, and then carrying it back again to the sidewalk. They all agree that the child was struck by the front wheel of the car and run over, in consequence of which he suffered great injury which necessitated the amputation of one of his legs above the knee. They all agree that the car was going at a regular pace or step; that at that hour in the January afternoon it was rather dark ; and here the proofs practically end without establishing any neglect whatever upon the part of the driver. It is difficult to discover any valid, legal ground upon which negligence can be inferred in such a case. The accident did not occur at a street crossing, and the car was lawfully proceeding, at its usual rate of speed, upon its rails through Thompson street. There is no evidence that the driver was incompetent, failed to look ahead, or omitted any care which a prudent driver should have taken, and the fact that the horses did not strike the bojr would seem to indicate that he was not immediately in front of the car nor within sight of the driver, but by want of care ran against the car, was thrown down and run over by the front wheel.

Whether the parents of the boy were negligent in permitting a child of such tender years to play upon the public streets where they knew cars were constantly passing need not be discussed, because, if there was no negligence on the part of the defendant’s driver, there is no ground whatever upon which the defendant could be held liable for the unfortunate occurrence. The nature of the accident furnishes no evidence of negligence, and the circumstances indicate nothing from which it may be inferred. Mere surmise or conjecture will not do.

The facts are certainly as consistent with due care on the part of the driver as with negligence, and in such a case a plaintiff is properly nonsuited. Hayes v. Forty-Second St. R. R. Co., 97 N. Y., 259; Cosulich v. Standard Oil Co., 122 id., 118; 33 St. Rep., 287; Baulec v. R. R. Co., 59 N. Y., 356.

The presumption is that all men do their duty, and it requires affirmative proof to rebut that presumption. Presumably the driver exercised due care, and there is not a particle of evidence to prove that he did not. For these reasons the complaint was properly dismissed by the trial judge, the exception taken to the dismissal must be overruled, the plaintiff’s motion for a new trial denied, and the defendant permitted to enter judgment on the direction in its favor, with costs.

Freedman, J., concurs.


text:
    William Elze, by Guardian, App’lt, v. Edward Baumann, Resp’t.

      (New York Superior Court, General Term,

      Filed January 3, 1892.)

    1. Negligence—Careless driving.
    In an action to recover damages for injuries received by a boy of six years, through the negligence of defendant’s servant, it appeared that plaintiff started to cross the street, when defendant’s two horse truck, in charge of his driver, was being driven up the street, and as the plaintiff stepped down onto the crossing defendant’s team suddenly swerved to the left, and though the plaintiff tried to get back on the sidewalk, the horses came so quick he was unable to do so, and he was knocked down and injured. The evidence showed that at the time plaintiff was injured the driver was looking behind the wagon, and could not have observed him. Held, that the complaint was improperly dismissed upon the ground of absence of negligence on the part of defendant and upon the ground of contributory negligence
    2. Same.
    The fact that the truck had upon it the name of defendant’s firm was sufficient to authorize a finding that the truck belonged to such firm, and. that the driver was in its employ.
    Appeal by the plaintiff from a judgment entered upon the direction of the trial judge, dismissing the complaint.

      Wm. C. Beecher, for app’lt; Benno Loewy, for resp’t.
   McAdam, J.

The action was brought to recover $10,000 damages for'injuries received by the plaintiff by being knocked down and run over by a two horse truck driven by a servant of the defendant. It appears that the plaintiff, a boy, then six years of age, started to cross Avenue A at Fifteenth street, July 19, 1889, when the defendant’s two horse truck, in charge of his driver, was being driven up the avenue on the farther side from where the boy was. Just as the boy stepped down on to the crossing the defendant’s team suddenly swerved to the left, and though the boy tried to recover himself and get back upon the sidewalk, the horses came so quick that they were upon him before he could do so, he was knocked down, the front wheel passing over him, doing serious bodily harm. When the plaintiff rested his case, the trial judge declined to send the questions of fact involved to the jury for determination, and dismissed the complaint upon the ground of absence of negligence on the part of the defendant, and of proof connecting the defendant with the acts charged, and also upon the ground of contributory negligence.

In determining the correctness of the nonsuit, the plaintiff is, under the practice, entitled to the most favorable inferences deducible from the_ evidence, and all the contested facts are to be-deemed established in his favor. Rehberg v. Mayor, 91 N. Y, 137-141; Galvin v. Mayor, 112 id., 223-230; 20 St. Rep., 569 ; Weil v. D. D. R. R. Co., 119 N. Y, at pp. 152-153; 28 St. Rep., 944, and kindred cases. And when, from the facts and circumstances shown, inferences are to be drawn which are not certain and incontrovertible, the question becomes one of fact for the jury. Weil v. D. D. R. R. Co., supra. Where, from the evidence, negligence of a defendant may reasonably be inferred, nonsuit is error Hill v. Ninth Avenue R. R. Co., 109 N. Y., 239 ; 14 St. Rep., 844. Where the facts are capable of more than one construction, or inferences are to be drawn respecting which minds might differ, the question is one of fact for the jury. Belton v. Baxter, 58 N. Y., 411; Thurber v. H. B. etc., R. R. Co., 60 id., 326; Maher v. C. P., etc., R. R. Co., 67 id., at p. 54; Stackus v. N. Y. C. R. R. Co., 79 id., 464; Hart v. Hudson River B. Co., 80 id., 622; Payne v. Troy, etc., R. R. Co., 83 id., 572; Harris v. Perry, 89 id., at p. 312.

To justify a nonsuit on the ground of the presence of contributory negligence or the absence of negligence, the facts must appear so clearly that no construction of the evidence, or inference drawn from the facts, would have warranted a contrary conclusion, and that a verdict the other way would have been set aside as against evidence. Kain v. Smith, 89 N. Y., 375. Though the acts of a party might justify a jury in finding contributory negligence on his part, this is not enough. If the acts were capable of different constructions, it was for the jury and not the court to determine which view should prevail. Steiverman v. White, 48 N. Y. Supr. Ct., at p. 526. With this brief review of the facts and of the law applicable to nonsuits, we. will proceed to the salient features of the case at bar with reference to the points urged for and against the determination made below.

In order to recover the plaintiff was bound, of course, to prove negligence on the part of the defendant or his employee in the line of his duty, and freedom from fault on his own part. This lies at the very foundation of the action. The term “negligence” has been variously defined, but, after all, means nothing more nor less than the absence of care according to the nature of the duty and the exigencies of the case. In other words, it is the omission to do something, or the doing of something, which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or omit to do under like circumstances.

To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. Johnson v. H. R. R. R. Co., 20 N. Y., 73 ; Warner v. N. Y. C. R. R. Co., 44 id., 471; Cordell v. Same, 75 id., 330.

The character of the defendant’s delinquency, however, may be such as to prove, prima facie, the whole issue; or the case may be such as to make it necessary to show by independent evidence that the plaintiff did not bring the misfortune upon himself. No more certain rule can be laid down. Johnson v. H. R. R. R. Co., supra. Indeed, the absence of any fault on the part of the plaintiff may be inferred from the circumstances, in connection with the ordinary habits, conduct and motives of men. Moak’s Underhill on Torts, 311, 312. The accident complained of occurred upon the highway, on which pedestrians have the same rights as drivers of vehicles. These thoroughfares belong to the public and are to be used in common by all alike, as circumstances require. Belton v. Baxter, 54 N. Y., 245 ; Brooks v. Schwerin, id., 343.

The only qualification to this rule is one drivers generally disregard; which is, that upon arriving at street crossings in cities they are bound to notice foot-passengers and take reasonable care not to injure them. If the driver fails to look out for them, or when he sees, does not, so far as in his power, avoid them, he is chargeable with negligence. Murphy v. Orr, 96 N. Y., 14; Moebus v. Herrmann, 108 id., 349 ; 13 St. Rep., 648; Atkinson v. Oelsner, 10 N. Y, Supp., 822; S. C., 32 St. Rep., 1088.

These regulations, necessary to protection, apply to men, women and children alike, and in dealing with the question the law will never hold it imprudent in any one to act upon the assumption that another in his conduct will act in accordance with the rights and duties of both. Steiverman v. White, 48 N. Y. Superior Ct., at p. 525. There is no positive rule of law which requires parents to keep their children housed, at the peril of losing, the safeguards of the law; these are denied to no one. It has been decided that it is not negligence, as matter of law, for the parent's of a bright child of but four and a half years old, living in a crowded locality in a city, with no other place for amusement, to permit the child, with proper instructions and directions against going into the street, to play upon the sidewalk without an attendant, and whether it was negligent under particular circumstances is a question of fact for the jury. Birkett v. Knickerbocker Ice Co., 110 N. Y., 504; 18 St. Rep., 130; McGarry v. Loomis, 63 N. Y., 104; McGuire v. Spence, 91 id., 303; Kunz v. City of Troy, 104 id., 344 ; 5 St. Rep., 642. Nor was it necessarily negligence for the child to attempt to cross the street. A person on foot has a right to cross the highway when and wherever he pleases, so long as he interferes with the rights of no one else in their use of the public highway.

The books contain many adjudications in cases where children have been injured while upon the streets, or in efforts to cross them. The earlier eases enforced a strict rule, the later a more liberal one.

In Hartfield v. Roper, 21 Wend., 615, it was held to be negligence to allow a child of tender years to go into the highway unattended. In Mangam v. R. R. Co., 36 Barb., 230, the court qualified this language bv holding it was negligence “ knowingly to allow ” a child of tender years to go at large in the public streets without a protector.” But on reversing the judgment of nonsuit the court of appeals held, S. C., 38 N. Y, 455, “ that the-escape of the child into the street through an open window, coming to within four feet of the ground, this being his onty means of egress, the door being locked, will not warrant the conclusion, as matter of law, that the parent was guilty of negligence.” In Fallon v. R. R. Co., 64 N. Y, 13, the mother left the child alone in the room adjoining the street, the door being open, with directions to return to the yard; but the child went' out into the street, where it was run over by the defendant’s car. Held, that the question of the mother’s negligence was properly submitted to the jury. Subsequent cases make the rule still more liberal.

Reference will be made to but a few. In Barrett v. Smith, 128 N. Y., at p. 609; 38 St. Rep., 922, it appeared that a child four years of age was playing on the street, where she was run over by a truck which came upon her unaware. The child in her terror first turned otie way, and then toward the horses, and got in front of them and was injured. The court said: “ She tried to save herself from a .danger which she might reasonably anticipate, but did precisely the wrong thing. Her mistake, however, does not deprive her of her remedy, provided the jury find that the driver was guilty of negligence.” The nonsuit, “ which was placed exclusively on the ground of no negligence on the part of the driver,” was set aside. In Levy v. D. D. R. R. Co., 35 St. Rep., 770, it appeared that a child four years of age was run over by one of the defendant’s cars. The evidence tended to show that the driver of the car (which was'a one horse car) had his face turned toward the inside of the car, and that he did not look forward until attracted by the cries of the people on the sidewalk. Held, that a nonsuit must be set aside.

In Mallard v. 9th. Ave. R. R. Co., 27 St. Rep., 801, plaintiff’s intestate, a child nine'or ten years old, was crossing a street and stopped two feet from the car track with her back to it, to call her companions to follow her. On turning and attempting to cross the track she was struck and run over by a car which was being driven at a rapid pace. Held, (1). That the facts required the submission to the jury of the question whether the car driver exercised ordinary care under the circumstances. (2). If the car driver, by the exercise of ordinary care, could have prevented the accident, he was the sole cause of the injury, and the negligence of the child would not prevent a recovery. Nonsuit set aside.

In Cowan v. Snyder, 5 N. Y. Supp., 340; 24 St. Rep., 438, it appeared that the plaintiff, a boy eight years old, in crossing a railroad track in the street of a city, stumbled and fell, and that while in the act of rising, be was struck and injured by a coach and team in charge of the defendant’s servant. Held, that whether the dliver of the coach was negligent was a question for the. jury. See also Thurber v. Harlem, etc., R. R. Co., 60 N. Y., 328. In Weil v. D. D. R. R. Co., 119 N. Y, 147; 28 St. Rep., 944, the plaintiff, a child hardly two years of age, while playing on the. street, was run over by one of defendant’s cars. The complaint was dismissed on the ground that the parents were negligent. Held, that this question on the evidence should have been submitted to the jury. Nonsuit set aside.

There are a number of reported cases, holding that it is negligence per se for a foot passenger to attempt to cross a public thoroughfare ahead of vehicles of any kind under such circumstances upon “ nice calculations of the chances of injury, but these were placed upon the ground that the foot passenger had no priority over the drivers of vehicles, and that having voluntarily assumed a danger, he cannot complain of the consequences, volenti non fit injuria. Belton v. Baxter, supra. Of this class is the case Fenton, admr. v. Second Avenue R. R. Co., 126 N. Y., 625; 36 St. Rep., 385, relied on by the defendant. There it appeared that an intelligent, healthy lad, ten years of age, attempted to run ahead of a car the horses of which were on a trot. The boy stumbled and fell, and the car passed over him causing his death.

The court held that the car had a preference in the street, that the accident did not happen at a street crossing, and hence the driver had no reason to anticipate the presence of the boy in front of his car, and that the boy, seeing the peril, was bound to use reasonable caution to keep out of the way of the impending danger which must have been apparent to him when he unwisely assumed the risk of attempting to escape from it. The judgment entered on a verdict in favor of the plaintiff in the court below was, therefore, properly reversed. The principles laid down in these two cases have no application, however, to the facts of the present contention, which take it out of the rule established there and bring it within one entirely different. The distinction is too apparent to require discussion.

In actions for injuries to children, the question prominently discussed is whether or not the child is sui juris. If non sui juris, there must be concurring negligence on the part of the parents or guardian, and in the absence thereof, the doctrine of contributory negligence has no application. Kunz v. City of Troy, supra, at p. 351. If the child is sui juris, the standard of care to be exercised by it varies with age and capacity. 4 Am. & Eng. Enc. of Law, 43. In examining the cases upon the subject it will be observed that slight circumstances have caused different results, which suggests that care must be taken to discriminate between those i which the child was held to be sui juris as matter of law or fact those in which the finding of negligence on the part of the defendant was the sole point presented to the appellate court for review ; others in which the child was held to be non sui juris, and the point was imputable negligence on the part of the parents or guardian, and the amount' and kind of care (depending on the peculiar circumstances) required from them ; next, those wherein the child was sui juris, and the jury determined the amount of care required by it, according to its capacity to appreciate and avoid danger; and lastly, those wherein the child was accompanied by protectors or others, in which that fact was considered a material circumstance in determining the question of liability. Indeed, no other controversies present a field in which circumstances and detail play a more important part.

If the child is non sui juris, it is supposed to be incapable of appreciating the necessity of caution and of exercising judgment and discretion. If sui juris, it is, therefore, held only to that degree of care and caution as is reasonably to be expected of a person of his age. Thurber v Harlem R. R. Co., 60 N. Y., 326 ; O'Mara v. Hudson R. R. R. Co., 38 id., 445; Ihl v. Forty-second Street R. R. Co., 47 id., 317; Kunz v. City of Troy, 104 id., at p. 350 ; 5 St. Rep., 642 ; Shear. & Redf. on Neg., § 73, and cases cited. In R. R. Co. v. Gladmon, 15 Wall., 401, Hunt, J., said: “Of an infant of tender years, less discretion is required than of an adult, and the degree depends upon his age and knowledge. Of a child of three years of age, less caution would be reauired than of one of seven, and of a child of seven, less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.” The question as to what age an infant's responsibility is presumed to commence, in most cases, is not for the jury, but for the court, Tucker v. N. Y. C. R. R. Co., 124 N. Y., 308 ; 36 St Rep., 272; Nagle v. A., etc., R. R. Co., 88 Penn. St., 35; Dietrich v. Baltimore, etc., R. R. Co.. 58 Md., 347, and in the absence of evidence tending to show that an injured infant, twelve years of age, was not qualified to under- ■ stand and appreciate the necessity for' observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris. Tucker v. N. Y. C. R. R. Co., supra, at p. 318. In a previous case, the court said : “ A child seven years of age is not, as a matter of law, sui juris so as to be chargeable with negligence. From the nature of the case, it is impossible to prescribe a fixed period when a child becomes sui juris. Some children reach the point earlier than others. It depends upon many things, such as natural capacity, training, habits of life and surroundings. These and other circumstances may enter into the question. It becomes, therefore, a question of fact for the jury where the inquiry is material, unless the child is of so very tender years that the court can safely decide the fact. Stone v. D. D. R. R. Co., 115 N. Y, 104; 23 St. Rep., 551. The effect ’ of being non sui juris is, “ that the defendant is legally responsible for the injury notwithstanding the negligence of the infant, unless it appears that the parents or guardian were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury. Kunz v. City of Troy, 104 N. Y, at p. 350; 5 St. Rep., 642.

This role as to imputed negligence of the parents or guardian must be applied, however, only to cases in which the child itself failed to use that degree of care which would be required from an adult. If it has in fact been as free from negligence as an adult would be expected to be, no amount of negligence on the part of its parents or guardian can affect its right to recover; except of course, as their acts, in breaking the sequence of events, might affect any other person. The whole theory of imputed negligence rests upon the assumption that the child has acted in a manner which would be negligence, if it had been of full age. Shear. & Redf. on Neg., § 79. The evidence shows that the plaintiff had just stepped off the sidewalk to cross avenue A, on the upper side of Fifteenth street. The defendant’s truck was on the other side of the avenue, and was going across the street right by the sidewalk, the horses swerved suddenly to the left, and caught the plaintiff just as he was stepping off the side walk. The plaintiff tried to recover himself, then the horses struck him and the wheel went over him. We fail to discover in this any carelessness on the part of the plaintiff contributing to the accident, and there can, therefore, be none on the part of his parents or guardian. The plaintiff was lawfully upon the sidewalk at the time, and in the exercise of a legal right when he attempted to cross the avenue, and if the defendant’s driver had peil’ormed the duty incumbent upon him, of looking out for foot passengers at the crossing and made reasonable efforts to avoid the plaintiff, the accident would not have happened. Instead of performing this plain duty and looking out for pedestrians that might be in front of him, the evidence shows that at the time the plaintiff was injured the defendant's driver was looking behind the wagon or sideways, and could not have observed the plaintiff. This was certainly a strong circumstance tending to show that the driver was responsible for the accident, and the plaintiff blameless. At all events, the facts were sufficiently strong to require the submission of these questions to the jury.

The plaintiff had the right to presume that the defendant’s servant would act with due care, and was not bound to anticipate culpable negligence on his part, Shearm. & Bedf. on Eeg., § 92, and the plaintiff’s freedom from contributory fault may be inferred from the absence of all appearance of fault, either positive or negative. Id., § 112. For negligence, a relative term, depends upon the degree of care necessary in a given case. The defendant contends that even if there was negligence, there is no evidence connecting him with the liability as owner of the truck or employer of the driver. The proofs show that the truck had upon it the name “ E. Baumann & Bro., 36 & 38 Ave. 0.,” and this was sufficient to authorize a finding that the truck belonged to a firm doing business under that name at that place, and : ; ownership of personal property draws to it the possession, it \vi l also be inferred that the driver was in its employ. Norris v. Kohler, 41 N. Y., 42 ; Seaman v. Koehler, 122 id., 646 ; 33 St. Rep., 729. But the proofs did not even rest there. The fifth paragraph of the complaint alleges that “ George Bertell was in charge of the defendant’s truck at the time of the accident, and was driving the same,” and the answer by not denying this allegation admits the truth of it Code, § 522. In addition to this, the witness, Cowan, testified that Bertell was the driver, and he identified him as the same person who answered to that name in the police court when charged with the reckless driving, and whether the defendant owned the truck or not, the fact that his employe, Bertell, had charge of it at the time was sufficient to charge him with liability on the principle of master and servant.

Eon-joinder of the other member of the firm was not pleaded, and if it had been would probably have been unavailing to the defendant in an action for a tortious act. It is difficult, therefore, to discover any ground upon which the action of the trial judge can be sustained.

The dismissal of the complaint was error for which the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman and Gildersleeve, JJ., concur.


author: Van Wyck, J.

text:
    William W. Katsky, Resp’t, v. Max Feist, Impl’d, App’lt.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1892.)

    Conspiracy—Evidence.
    In an action for conspiracy in endeavoring to ruin plaintiff’s assignor by means of an excessive levy under an attachment, evidence to show that judgment in the attachment action was given against said assignor by default is admissible to negative such alleged conspiracy.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $650, and from order denying motion for a new trial.
    Action to recover damages for an excessive levy under an attachment, and for trespass upon the premises and business of one Adolph Weinhandler, a merchant doing business in the city of Brooklyn.

      Ira Leo Bamberger and Mitchell May, for resp’t; J. W. & C.W. Ridgway (Henry B. Twombly, of counsel), for app’lt.
   Van Wyck, J.

The complaint alleges that the defendants, Goodman (a constable) and Feist (who was the plaintiff in an action against one Weinhandler, the assignor of Katsky), combined and conspired together for the purpose of ruining and injuring the said Weinhandler, and used, in carrying out such conspiracy, a warrant of attachment (issued in Feist against Weinhandler), viz., for the purpose of unlawfully and wrongfully seizing the property of Weinhandler and procuring the delivery thereof to said Feist. To establish such conspiracy, plaintiff was allowed to show that such an attachment was granted, and that defendánts seized the property of Weinhandler and caused it to be sold. The court, under objection and exception, would not allow the defendants to show that judgment was given against Weinhandler by default in the action in which the attachment was granted, and that the property was sold under such judgment. We think this evidence would have tended, at least, to negative the alleged conspiracy, and, therefore, should have been admitted. We deem it unnecessary to discuss the other questions raised on the appeal, as the judgment and order must be reversed for this error, and new trial granted, with costs to appellants to abide the event.

Clement, Cb. J., concurs.


author: Per Curiam.

text:
    William Spence, App’lt, v. Adolph Simis, Jr, Resp’t.

      (City Court of Brooklyn, General Term,,

      Filed December 27, 1892.)

    Reference—Compulsory.
    - Where action is brought for goods sold at various times, consisting of many items, and the answer, while admitting that such goods have been delivered, alleges an absence of knowledge or information sufficient to form a belief that they were of the quantity alleged, the plaintiff, unless he stipulates to rely on the promise to pay, must prove each of said items, and a reference is, therefore, proper.
    Appeal from order granting a compulsory reference.
    The complaint alleged the sale and delivery to defendant of coal and wood, which were reasonably worth and for which defendant promised to pay the sum of $248.25 ; also, that plaintiff paid for recording a mortgage, for which defendant agreed to reimburse him, but failed to do so; also, that defendant was indebted to him for interest moneys on said mortgage.
    The answer admitted that plaintiff had sold coal and wood to defendant, but alleged that defendant had no knowledge or information sufficient to form a belief that the value thereof was $248:25, or that he promised to pay the same; also, denied having any knowledge or information as to the other allegations, and set up counterclaims for professional services.

      Andrew L. Gardiner, for app’lt; Adolph Simis, Jr., for resp’t.
   Per Curiam.

The plaintiff brought this action for goods sold and delivered, and it is conceded that, on the answer, he may be bound to prove each item of his account [which consists of twenty-three items]. If the appellant had stipulated, on the motion for reference, to withdraw his claim on a quantum meruit and rely solely on the allegation of a promise to pay, no proof of the items would have been necessary. The plaintiff may not be able to prove the promise, and then can prove the items of the account The order of reference was, therefore, properly made.

Order affirmed, with ten dollars costs and disbursements.

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


text:
    James F. Mulvaney, Resp’t, v. The Brooklyn City Railroad Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1892.)

    Master and servant—Railroads—Negligence.
    Plaintiff, who was a brakeman on defendant’s road, while endeavoring to get a drunken man off the side step of the ear, in pursuance of its rules, was knocked off the train by a train moving in an opposite direction around a curve. It appeared that the tracks were too close together for trains to pass safely; that the outer rail was not raised; that the curve was made of straight rails, and that there were no rules that trains should not pass each other on the curve at all, or only at slackened speed, or that all persons should keep off the step while rounding the curve. Held, that these facts unexplained warranted the finding of negligence on the part of the defendant.
    Appeal from judgment in favor of plaintiff, entered upon a verdict for $5,000, and from order denying motion for a new-trial.

      Johnson & Lamb, for resp’t; Morris & Whitehouse, for app’lt.
   Van Wyck, J.

The plaintiff, a brakeman on one of defendant's trains, recovered a verdict against the defendant for injuries claimed to have been inflicted solely through the negligence of defendant. From judgment entered thereupon, and from order denying motion for a new trial, this appeal is taken. The appellant’s counsel argued this appeal solely upon the ground that a nonsuit should have been granted, insisting that there was no negligence on the part of defendant, that it was one of the risks assumed by plaintiff, and that plaintiff was chargeable with contributory negligence.

There is testimony in the case from which it can be fairly inferred that plaintiff, while engaged in the performance of the duties imposed upon him by the orders of defendant, was upon the side step of one of the open cars of the train drawn by a steam engine around the curve at Sixty-seventh street, when the tz-ain moving in the opposite direction rounded the same curve, knocked plaintiff off his train, and thus caused the injuries complained of; that the tracks were improperly laid, in that they were too close for trains to pass safely; that the outer rail of the curve was not raised, and that the curve was made of straight rails and not curved rails ; that it was not safe for trains to pass each other on this curve at the usual speed, or at all; that plaintiff never saw trains passing each other on this curve but twice; that he had been ordered by defendant to keep passengers off the step next to the other track, and when he was knocked off, he was on the step for the purpose of forcing an intoxicated passenger to get off this step and into the car.

It seems to us that these facts, unexplained, would warrant a jury in finding defendant chargeable with negligence, for “ a railroad corporation, for the safety of its * * * employes, is bound to use suitable care and skill in furnishing not only adequate engines and cars, but also a safe and proper track and roadbed." Donnegan v. Erhardt, Receiver, etc., 119 N. Y., 468; 29 St. Rep., 589. Then, again, there seems to have been no rules for and instructions to those in charge of trains, that trains shoulil not pass each other upon this curve at all, or if they did, that they should slacken the speed, or that all persons must keep off the steps while rounding this curve. “A railroad company is bound to guard its employees against the negligence of co-employes, so far as it can, by the enactment and promulgation of reasonable rules in the management of its business.” Abel v. Prest., D. & H. C. Co., 128 N. Y, 662; 40 St. Rep., 626 ; Sheehan v. N. Y. Cent. R. R. Co., 91 N. Y, 334. Such a company “is bound to carry on its business under a proper and reasonable system or regulations * * * and if, through any defect therein,

an injury occurs to the servant, the corporation will be liable.” Dana v. N. Y. Cent. R. R. Co., 92 N. Y., 640; Ford v. The Lake Shore, etc., R. R. Co., 124 N. Y., 493; 36 St. Rep., 494.

The defendant took no steps -to make this track and roadbed reasonably safe and proper, or to instruct the employees of the dangers thereof, or to regulate the passing of trains at this dangerous point. It can hardly be claimed that plaintiff was guilty of contributory negligence, as a matter of law, in being upon this step in obedience to orders of his superiors to put passengers off this step, when he was ignorant and uninformed of the dangers from a passing train on this curve by virtue of the condition of this track and road-bed. If the engineer was negligent, it is well settled that such negligence would not defeat plaintiff’s right of recovery, provided the injury was caused by the failure of defendant to use such care as duty to its employes demanded. Abel v. Prest., etc., D. & H.C. Co., 128 N.Y., 662; 40 St. Rep., 626. We are of the opinion that the motion for nonsuit was properly denied, and do not think, on examination of the evidence, that the verdict should be set aside.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs._


author: Clement, Ch. J.

text:
    The Central Gas & Electric Fixture Co., App’lt, v. Patrick Sheridan, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1892.)

    Pleading—Demurrer—Nature op cause op action.
    A complaint setting forth the furnishing of certain articles under a contract; a demand for the return thereof on payment for the same; a refusal to return or pay for them; that defendant converted them to his own use; and has become liable to pay said plaintiff therefor, and demanding judgment for the value of the goods and the work and service of placing them, sets forth a cause of action on contract, and not one for conversion.
    Appeal from judgment sustaining demurrer to the complaint

      Birdseye, Cloyd & Bayliss, for app’lt; J. Stewart Ross, for resp’t.
   Clement, Ch. J.

The defendant demurred to the complaint in this action, on the ground that two causes of action were improperly united, and, at the special term, the demurrer was sustained.

The sole question to be determined on this appeal is whether the first cause of action sets forth an implied contract, or is for damages for the taking or detention and conversion of chattels. In the complaint it is alleged, “ that the defendant thereupon took and retained possession of said house and premises, including the goods, wares and merchandise of said plaintiff therein; that said plaintiff duly notified the said defendant of the matters herein set forth, and demanded the return of said goods, wares and merchandise, or that defendant pay said plaintiff therefor ; that defendant refused to either return said goods to plaintiff or pay for the same, but, well knowing the matters herein set forth, proceeded to have and did have wires and burners specially constructed for lighting gas by electricity affixed to said chandeliers and fixtures, and has had said wires connected with an electric battery, all for the purpose of lighting the gas when turned on in said chandeliers and fixtures by the use of said electricity from said battery, and through said wires and burners; that thereby said defendant converted said goods, wares and merchandise to his own use, and has become and is liable to pay said plaintiff therefor.” In the complaint the plaintiff does not seek to recover damages ; the prayer for relief is for the value of the goods and of the work, labor and service in and about hanging the same.

The sole allegation in the complaint which can be claimed to show that the action is in trover is “ that thereby the said defendant has converted said goods, wares and merchandise to his own use,” but this allegation is connected with a subsequent one which should be interpreted to read that, by reason of such conversion, the defendant has thereby become and is liable to pay therefor. We are of opinion that the first cause of action in the complaint is on contract.

Where there is an ambiguity whether an action is on contract or in tort for conversion, it is to be presumed to be based on contract. Goodwin v. Griffis, 88 N. Y., 629, 639. The prayer for relief may be material in the determination of the question. Swart v. Boughton, 35 Hun, 281; Goodwin v. Griffis, supra, 638. In Austin v. Rawdon, 44 N. Y., 63, the cause of action was held to be on an implied contract, though it was charged that a demand had been made for the securities, and that the defendants wrongfully refused to deliver and had converted them to their own use. In the case of Neftel v. Lightstone, 77 N. Y., 96, the plaintiff set forth that he placed two checks for fifteen hundred dollars in the hands of the defendant, not to be used except with the consent of - plaintiff; that plaintiff demanded a return of the checks, which the defendant refused, and wrongfully converted the same to his own use, and on the other allegations the court of appeals held that the action was on contract. The right of the plaintiff to-waive the tort and sue on an implied contract is well settled. Terry v. Munger, 121 N. Y., 161; 30 St. Rep., 746; Abbott v. Blossom, 66 Barb., 353.

The interlocutory judgment must be reversed and judgment, entered overruling the demurrer,' -with costs, with leave to the defendant to answer on payment of costs at special and general term.

Osborne, J., concurs.


text:
    Laura E. Owens, by Guardian, Resp’t, v. John H. Ernst et al., App’lts.

      (City Court of Brooklyn, General Term,,

      Filed December 27, 1892.)

    Master and servant—Negligence.
    Plaintiff had been employed for about two weeks in receiving clothes from an ironing machine, when she was required by the foreman to smooth' out the wrinkles that came in the roller covering. He showed her how to do it by pressing his fingers bn the roller while at full speed, although he testified that he knew that no one should be instructed to smooth the wrinkles while the roller was in motion. Upon plaintiff’s attempting to do as she was directed her fingers were drawn in the machine; and injured. Held, that a motion to dismiss was properly denied.
    Appeal from judgment in favor of plaintiff, entered upori verdict for $2,500.

      Thomas S. Pearsall, for resp’t; C. C. Nadal, for app’lts.
   Van Wyck, J.

In the defendant’s laundry was a mangle or ironing machine run by steam. The mangle consists of a system of small rollers covered with muslin, coming in qontact with a large iron heated cylinder. The clothes are fed in front of the machine, passing between these small rollers and cylinder which dries and irons the clothes. - The plaintiff, a girl of fifteen years, was employed by defendants, and was engaged, for the two weeks preceding the date of the accident, in receiving the clothes as they passed out of the machine ironed. On the day of the accident, she was told by the foreman in charge of the business that she must smooth out any wrinkles that came in the muslin covering of the rollers. She told him she could not do it as she did not-know how, when he informed her that, if she did not, he would get some one who could, and proceeded to show her how to do it, viz, he smoothed the wrinkle out by pressing his fingers over the wrinkled roller while it was moving at the usual speed. This, she testifies, was the only instruction given her. The testimony shows that by a combination of starch, heat and dampness, there was a strong tendency for the fingers to stick to the rollers, and to be drawn in between the rollers and the hot cylinder. This foreman says he knew it was dangerous for anyone to put the hand on the moving roller, as it would go in and stick against the cylinder, and that no one should be instructed to smooth the wrinkles while the roller was in motion. This plaintiff says the foreman not only failed to give her the proper instructions but actually gave her the wrong instructions, and in her first effort to follow his command and erroneous instructions, her fingers stuck to the rollers, and were drawn in upon the hot cylinder, and were so lacerated that amputation thereof became necessary. The jury believed her story and gave her á verdict for $2,500.

We think the trial court properly denied the motion to dismiss the complaint. Shearman & Redfield on Negligence, 4th ed., vol. 1, § 203 ; Healey v. Hart Bagging Co., 39 St. Rep., 122; Ryan v. H. W. Johns Mfg. Co., 46 id., 305 ; Grizzle v. Frost, 3 Fost. & Fin., 623.

We have carefully examined the testimony in this case, and do not think the verdict is against the weight of evidence, and further, we do not think that error can be predicated upon the other exceptions called to our attention by appellant’s counsel

Judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.


author: Van Brunt, P. J.

text:
    Matilda A. Adams, App’lt, v. Samuel M. Adams, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Divorce—Limited—Abandonment.
    Proof of disagreements and that the parties are living apart with the consent and virtual approbation of the plaintiff is not sufficient to sustain an action for a limited divorce on the ground of abandonment.
    Appeal from judgment dismissing the complaint.

      Smith & White, for app’lt; G. P. Howe, for resp’t.
   Van Brunt, P. J.

This action was brought to obtain a limited divorce upon the ground of abandonment. The learned court dismissed the complaint upon the ground that there was no suffiT cient proof showing abandonment to justify the granting of a decree. With this conclusion we have no disposition to interfere. The evidence upon the part of the plaintiff tending to show an abandonment is of a very vague and unsatisfactory character; and the claim of want of support rests upon even a slighter foundation, as there is no evidence whatever tending to show that the defendant has not contributed to the plaintiff’s support as far as his means would allow. It is evident that there were disagreements between the parties, and that their married life was not particularly harmonious. But there is no evidence of a refusal upon the part of the defendant to contribute to the support of the plaintiff; and, as far as their living apart is concerned, it would appear to have been with the consent and virtual approbation of the plaintiff. Under these circumstances, no case whatever is make out for the interference of the court; and, as mere inharmonious relations have not as yet become, in this state, a ground for the granting of a decree of divorce, we think that the judgment appealed from should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


author: O'Brien, J. Van Brunt, P. J.

text:
    The People, Resp’ts, v. Frank Zounek, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

      1. Criminal law—Appeal—Conflicting evidence.
    Although the appellate court may order a new trial if satisfied that the verdict was against the weight of evidence, or against the law, or that justice requires a new trial, whether any exceptions were taken-or not; yet the jury is the ultimate tribunal for the determination of questions of fact, and their determination upon conflicting evidence will not be disturbed.
    2. Assault—Evidence.
    On the trial of an indictment for assault, evidence of the complainant as to whether he became unconscious, and how long he remained so, and evidence as to the fact of his being taken away in an ambulance, is admissible as part of the res gestee.

    Appeal from a judgment of conviction of assault in the second degree, rendered by the court of general sessions of the peace for the city and county of New York on the 24th day of March, 1892.

      Henri Pressprich, for app’lt; De Lancey Nicoll and Henry B. B. Stapler, for resp’ts.
   O'Brien, J.

The indictment consisted of three counts, the first charging the prisoner with assault in the first degree for having ■assaulted the plaintiff “ with a deadly weapon, and with intent to kill.” The other two counts charged assault in the second degree. Upon the trial the learned judge directed the jury that there was not sufficient evidence to warrant a conviction for assault in the first degree, and sent the case to the jury upon those counts in the indictment which charged assault in the second degree. Those counts, in effect, charged defendant with an assault upon the complainant with a steel square, and the circumstances surrounding the making of the assault may be briefly referred jfco, because too great extent their statement disposes of most, if not .all, the contentions urged by appellant. The complainant and prisoner are marble cutters, and were working in the same shop at opposite sides of the same millstone. On the day of the assault, the complainant walked around the stone to where the defendant was working, and his request for a match was met with a refusal and a push. This resulted in a fight between the parties, and, according to the testimony of the witnesses, when the defendant had thrown the complainant to the ground, he took from the wall where it was hanging a steel or iron square, the long leg of which was about two feet long, and the short leg about TJ feet, and struck the complainant over the head as the complainant was lying on his back. The force of the blow rendered the complainant unconscious, and he lay on the floor until taken by the ambulance to the hospital. The severity of the blow is shown by the fact that it cut his scalp open, and covered the floor with blood.

It is stated that at the time of the assault the complainant had no weapon in his hand. Against the testimony of three eyewitnesses, who were fellow workmen in the same shop, the defendant testified that the complainant attacked him, and knocked him down; that he stood up again, and the complainant again attacked him, and that he then struck the complainant with the-square, in self-defense. This testimony was impartially submitted by the learned trial judge to the jury; and while there may be some conflict of fact as to details between the evidence of the-respective parties, we think the preponderance is in favor of the version given by the complainant; but whether this be so or not, the verdict of the jury upon these questions of fact is conclusive. It is true, as urged by the appellant, that this court may order a new trial if satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the .court below. Code Grim. Pro., § 527. The distinction, however, between the province of the court and that of the jury in dealing with evidence is clearly pointed out in the ' following cases: People v. Cignarale, 110 N. Y., 26; 16 St. Rep., 155 ; People v. Kelly, 113 N. Y., 647; 22 St. Rep., 969; People v. Slone, 117 N. Y.. 483; 27 St. Rep., 823; People v. Trezza, 125 N. Y., 740; 36 St. Rep., 149. In the case first above referred to, Judge Andrews says: “It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse or opposing inferences.” Having regard, therefore, to the-power of this court to interfere with the verdict of a jury, and the limitations placed thereon by the decision from which we have quoted, we do not think that this is a case where we would be justified in interfering with a verdict which, upon the record,, appears to be amply supported by evidence.

The claims that there is wanting evidence of intent, that the instrument was an iron, instead of a steel, square, and that it was not a weapon or instrument lilvelyr to produce grievous bodily harm, all these, we regard as without merit. The court was, therefore, right in its ruling disregarding the motion made by the prisoner’s counsel that the jury be advised to acquit, and in overruling the motion made to acquit the prisoner on the ground of

the variance between the facts proven and the facts alleged in the indictment.

The only other matter pressed upon our consideration relates to certain rulings upon admission of evidence, which may be briefly noticed. The complainant was asked how long he had been working in this marble yard, to which he answered, “About two years.” This testimony was introductory, and in no way harmed the prisoner. He was also allowed to answer the questions asked as to whether he became unconscious, and how long after the blow he became sensible or conscious. These questions, we think, were properly allowed, being competent to show the extent of the injury received by the complainant, and, therefore, part of the res gestae. Nor, for the reason already given, do we think it was error to allow the witness Soukup to state, in answer to the question objected to, that the complainant was taken away in an ambulance. Upon an examination of the entire record, we do not find any error which would justify us in interfering with this verdict. The trial judge’s charge was impartial and clear, to which no exception was taken; in addition to which the defendant had the benefit of all his requests to charge, which were granted. We are, therefore, of opinion, on the whole case, that the judgment of conviction should be affirmed.

Van Brunt, P. J.

The verdict of the jury was clearly right,' and this court, even though it has the power, should not interfere therewith. The judgment should be affirmed..

Lawrence, J., concurs.


text:
    In the Matter of the Judicial Accounting of Robert W. Taylor, Ex’r.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Death—Pkesumption op.
    The presumption of d'eath without issue does not arise from the mere fact of absence without being heard from for eleven years, in the case of an illiterate girl of eighteen, who had been unruly and of drinking habits.
    Appeal from certain parts of the decree made and entered by the surrogate of New York county in this matter.
    The facts are fully stated in the surrogate’s opinion, SO St. Rep., 212.

      H. Major, for app’lt; George B. Ashley, for resp’t.

       Affirming 30 St. Rep., 212.

   Van Brunt, P. J.

The following facts appeared before the surrogate : One Ann Eliza Miller died in the city of New York in the fall of 1882. By her will she gave the income of a fund of $20,000 to her mother for life; and the fund itself, upon the death of her mother, to the children then living of her three brothers, Andrew, David and John Mann, to. be distributed among such children equally. The mother died in September,

1888, and in December following the executors and trustees under the will filed with the surrogate their verified account, with a petitian for its judicial settlement, in which it was stated, among other things, that owing to the death of the mother the said trust fund was ready for distribution. Citations were issued and served upon all interested parties, either personally or by publication, and the account and objections were sent to a referee. On the coming in of his report, it was referred back to the same referee to try and determine the question whether Ann E. Wilcox and Ellen Dale Mann, two daughters of David A. Mann, one of the brothers of the testatrix named in the will, were alive at the time of the* decease of the mother. Upon the hearing before the referee, Ann E. Wilcox, whose married name was Oonkling, appeared, and proved her identity. Ellen Dale Mann did not appear, and the referee found that she had absented .herself for a period of eleven years, and had not been heard from in that time ; and it was therefore presumed that she had died before the mother of the testatrix, without issue. This finding as to Ellen Dale Mann was overruled by the surrogate, and a decree entered deciding that she was still alive, and that one-third of the above mentioned fund should be paid to and divided between her and her sister, the appellant, equally, and from the surrogate's decree, in so far as it so decides, this appeal is taken. Upon an examination of the grounds upon which the learned surrogate based his decision, we see no reason for differing with the conclusion arrived at by him ; and, therefore, think that, for the reasons stated by the learned surrogate, the part of the decree appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    In the Matter of the Application of The Taylor Iron & Steel Co., App’t, v. Cecil C. Higgins, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Attorneys—Lien—Reference.
    In a proceeding to compel the delivery of papers in an attorney’s possession, where his claim for services is indefinite, but it appears that some amount is due him, it is proper to direct a reference to ascertain the amount due, giving the plaintiff an option to deposit a sum sufficient to secure such claim as may be established on the reference.
    Appeal from an order of the special term denying the prayer of the petition that respondent return coupons held by him as attorney, with costs, and ordering a reference to take testimony as to the value of professional services, alleged to have been rendered.

      W. P. Fisher, Jr., for app’lt; C. C. Higgins, resp’t in person.
   Van Brunt, P. J.

Upon an examination of these papers it appears that some amount may be due to the respondent because of his retainer by the plaintiff. The appellant, therefore, was not entitled to an absolute delivery to it of the property in question without securing in some manner the lien of the attorney for such amount. It is undoubtedly true that the attorney, in the presentation of his claim, has been exceedingly indefinite as to the nature of the services, and the circumstances out of which his claim arose; but this fact did not deprive him of the lien which he had for such amount as might be found to be due to him from the appellant. Although the appellant now seeks to claim some improper conduct upon the part of the attorney which has deprived him of all right of compensation, we do not think the court should try such an issue upon affidavits. It pursued the proper course in directing a reference to ascertain the amount which might be due to the attorney, giving to the appellant the option of making a deposit with the chamberlain of the city of New York of an amount sufficient to secure whatever claim the respondent might establish upon such reference. The order should be affirmed, with $10 costs and disbursements.

O’Brien and Lawrence, JJ., concur.


text:
    Adelbert H. Steele et al., App’lts, v. Thomas H. Wells et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Dismissal of complaint—Plaintiff’s opening.
    It is improper to dismiss the complaint on the merits upon the plaintiff's opening. In such case a simple dismissal only is allowable.
    Appeal from judgment dismissing the complaint on the merits.
    Action to restrain defendants from carrying out a certain contract entered into by them as a committee of bondholders of a railroad and from delivering certain bonds in pursuance thereof.

      Wm. M. Safford, for app’lts; Frank Sullivan Smith (C. Waite)' Ariz, of counsel), for resp’ts, Dick and another ; Simpson, Thacher & Barnum (Thomas Thacher, of counsel), for resp’t committee.
   Per Curiam.

The case of Brooks v. Dick, 43 St. Rep., 37, was controlling upon the justice at special term, but, as the dismissal was upon the opening of the plaintiff’s counsel, it was erroneous to dismiss the complaint upon the merits. The judgment should be modified so as to direct a simple dismissal of the complaint, and, as thus modified, it is affirmed, without costs on this appeal.

Van Brunt, P. J., O’Brien and Lawrence, JJ., concur.


author: Barrett, J.

text:
    Edwin Gomez et al., Resp’ts, v. Horatio Gomez, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Trustee—Accounting—Costs.
    Where an action to compel an accounting by a trustee has resulted in an interlocutory judgment directing payment to plaintiff of a specified sum with costs, and a reference is ordered to determine whether the costs shall be paid out of the estate or by the trustee personally, the trustee cannot be permitted to retain the costs of defending the action from the sum decreed to be paid, as this would forestall the decision on the question of costs.
    Appeal from an order granting an application of the plaintiffs to compel the defendant, as trustee, to pay over certain income from real estate.

      Edgar J. Nathan (Michael H. Carduzo, of counsel), for app’lt; Hector H. Hitchings, for resp’ts.
   Barrett, J.

The order appealed from required the defendant to pay over to the plaintiffs in this action one-sixth part of the moneys received by him as their trustee for the quarter ending May 1, 1892. There is no dispute about the amount in the defendant’s hands due and payable to those entitled to this one-sixth, and the only question presented by this appeal is whether the defendant had a right to deduct from such sum $280, the amount of a counsel fee and disbursements paid by him in the defense of this action. This action was brought to obtain an accounting from the defendant with regard to the estate in question, and thus far the plaintiffs have been successful, an interlocutory decree for such an accounting having been made at special term. In this interlocutory decree it was adjudged that these plaintiffs were entitled to their costs of the action, and it was referred to a referee to report whether such costs should be allowed to the trustee out of the trust estate, or whether he should be charged with them individually. It seems to us that, under these circumstances, the trustee’s claim to deduct from the plaintiffs’ one-sixth of the income the fees paid to counsel, for services rendered in the effort to defeat the plaintiffs, was an extraordinary one. The real question yet to be determined is not whether the defendant should be indemnified out of the plaintiffs’ share for his unsuccessful resistance tó the accounting claimed, but whether the plaintiffs should have the costs of their successful claim out of the estate or from the defendant personally. The defendant cannot be permitted, while such a question is pending, to forestall its decision ; and of course it would forestall its decision to hold that the defendant was actually entitled to defend himself against the plaintiffs’ claims out of the plaintiffs’ own funds ; for, if he is so entitled, he certainly cannot be charged personally with the plaintiffs’ costs.

The point that the cestui que trust could not assign his right to the income need not be considered, for the reason that the cestui que trust himself is a party plaintiff and also a party petitioner; and the order appealed from required the moneys to be paid to him and to his assignees jointly; that is, to be paid to his and their attorney for him and them. The defendant will thus be amply protected; for if he be right in his position he will have the receipt of the cestui que trust, and if he be wrong he will have the receipt of the assignees. We think that the learned judge at special term was quite right in the order that he made, and his suggestion that the allowance or disallowance of the counsel fee and disbursements referred to should rest until the final decree was as favorable to the defendant as he had a right to expect. The order should be affirmed, with ten dollars costs and the disbursements of this appeal.

O’Brien, J., concurs.


text:
    Calvin C. Bowen, Resp’t, v. Allan Lee Smidt, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)
    Attorneys—Summary proceedings against.
    Where a client has assigned to a third person his claim for moneys col-

      lectcd for him, of which fact the attorney has received notice, the attorney cannot he compelled by summary process to pay over such moneys.
    Appeal from an order directing the defendant, an attorney, to pay within five days the sum of $175 to the complainant or his attorney.

      James B. Reilly, for app’lt; J. D. Hallen, for resp’t.
   Van Brunt, P. J.

Although it seems probable that the appellant owes the money in question, yet we do not think that the court should have made the order directing its payment to the respondent, in the face of the notice of the assignment of the claim given by the respondent and the claim made by the assignee. Such assignee seems to have the right to collect this money from the appellant, which he cannot do in a proceeding of this nature, as the relation of attorney and client has never existed between them.

The order appealed from must be reversed, and the proceeding dismissed, with ten dollars costs and disbursements of the appeal.

O’Briew and Barrett, JJ., concur.


author: Peckham, J.

text:
    In the Matter of the Application of the Metropolitan Elevated Railway Co. to Acquire Title, Etc.
      In re Jones et al.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Stipulation—Force of—Condemnation proceedings.
    The railroad, by a stipulation, for the purpose of obtaining a stay of proceedings upon a judgment awarding an injunction which would restrain them from the further operation of their road, agreed not to insli tute or prosecute proceedings to condemn the property, pending the stay granted by the order, and that they would contest the plaintiffs’ right only in the action. Held, that the phrase italicized was to be applied to the whole agreement, so that it limited the right of the company to institute or prosecute proceedings to condemn only pending the stay, and when the stay became useless by the reversal of the judgment, the railway company was free to act as it was before the stipulation was given.
    2. Same—Appeal.
    Subsequent to the reversal of the judgment the special term judge granted an order denying a motion by the railway company for commissioners in condemnation proceedings, on the ground of the giving of said stipulation. Held, that an appeal could be taken from such an order, as it was not of that character which the statute makes final and conclusive with the general term of the supreme court.
    Appeal from order of the supreme court, general term, first department, affirming order denying application for the appointment of commissioners of appraisal.

      Julien T. Davies, for app’lt; William G. Peckham, for respt.

       Reversing 49 St. Rep., 374.

   Peckham, J.

Prior to 1889, the property owner whose property, or some portion thereof, is involved in this proceeding, brought an action against the company to restrain it from the further operation of its road in the street in front of the property of such owner, on the ground that it was so operating its road without right as to such owner. In that action it was sought to obtain a judgment which should enjoin the further operation of the road until the amount of damages which the owner would sustain by reason of such road had been ascertained and paid. It was the usual action in equity, numbers of which have been before the courts of original jurisdiction, and also before this court, for a long time back. While the action was pending and undetermined, the railway company, in 1889, instituted proceedings to condemn the property which was the subject-matter of the action above mentioned. Nothing further seems to have been done in' the proceedings to condemn until 1890, when some amendment of such proceedings was made, and from that time until 1892 the railway company remained inactive so far as such proceedings were concerned. Subsequent to 1890, the action of the property owner was tried, and resulted in a judgment for the plaintiff for a certain amount of damages, and for the award of an injunction as prayed for. The railway company desired to appeal from such judgment, and desired a stay of proceedings under the injunction in the meantime, and until a decision upon the appeal could be had. It would seem that plaintiff in the action opposed a stay of the injunction pending such appeal, and thereupon the following stipulation was entered into:

“SUPREME COURT—County of New Yore. ■“American Bank Note Company against The Metropolitan Elevated Railway Company and the Manhattan Railway Company.

“ Stipulation.

“As a condition of obtaining the stay of the injunction contained in the judgment herein, imposed upon these defendants by an order entered herein on the 8th day of October, 1890, and solely under compulsion of the said order, the defendants above named, and each of them, hereby stipulate that they or either of them will not institute or prosecute any proceedings to condemn the property described in the complaint herein, pending the stay granted by this order ; and that they, and each of them, will contest the plaintiff’s rights only in this action; and that they will prepare a case on appeal at once.

“DatedNew York, October 15, 1890.

“ Davies & Rapadlo,

Aitys. for Defts.,

“ 82 Nassau street,

“ N. Y. City.”

Upon signing the stipulation the issuing of the injunction pending the appeal was stayed.,

The judgment upon the appeal was reversed. Subsequent to the reversal the railway company noticed a motion in the condemnation proceedings for the appointment of commissioners in accordance with the amended petition verified in June, 1890. That motion was opposed bv the property owner and denied by the court. The form of the order and the memorandum made by the judge who denied the application led, of necessity, to the conclusion that the application was not denied upon any ground of discretion, but solely upon the construction given the stipulation by the learned court at special term. The memorandum was indorsed upon the moving papers as follows : “ I think the stipulation given, both in words and spirit, agrees that this proceeding shall not be pursued. Motion denied.”

The order denying the application, after reciting the reading of the petitioner’s amended petition and the affidavit of the attorney for the property owner, continues : “And on reading the stipulation signed by the defendants, stipulating to contest the plaintiff’s rights only in the action brought by the plaintiff, and after liearying A. S. Lyman, Esq., of counsel for the petitioner, and William G. Peckham, Esq., of counsel for the property owner, Ordered, that the petitioner’s motion be and the same is hereby denied, with $10 costs.” This order was affirmed in all respects by the general term, and from the order of affirmance the railway company has appealed to this court.

We think the contention of the counsel for the respondent that the order is not appealable cannot be maintained. It is not of that character which the statute makes final and conclusive with the general term of the supreme court. The order which is not appealable to this court relates to the assessment of damages for the taking of the land and everything that could be litigated before and passed upon by the commissioners. All orders which are discretionary with the courts below are also not appealable, unless in cases of abuse of such discretion.

Here the question in this case and upon the record as made up is really one of law as to the proper construction of the stipulation. Upon that question, we think, the courts below have erred. The railway company by that stipulation, for the purpose of obtaining a stay of proceedings upon the judgment awarding an injunction, which would enjoin them from the further operation of their road, agree not to institute or prosecute proceedings to condemn the property pending the stay granted by the order, and that they will contest the plaintiff’s right only in the action. It seems to us that the phrase “ pending the stay granted by the order ” is to be applied to the whole agreement, so that it shall limit the right of the railway company to institute or prosecute proceedings to condemn only pending the stay, and when the stay becomes useless and functus officio by the reversal of the judgment which awarded the injunction, the railway company is, by the proper construction of the agreement, free to act as it was before the judgment for an injunction was obtained or the stipulation entered into. The contrary construction, we think, is not warranted by the terms of the stipulation.

If the railway company do not proceed with proper diligence in the condemnation proceedings, the property owner is not hi the least harmed. It is always at liberty to bring its own action to trial again, and can therein obtain all the relief necessary, or to which it may be entitled. The question is a narrow one, involving simply the construction of one phrase in a stipulation, and we think the railway was only bound to refrain from instituting oi prosecuting condemnation proceedings pending the stay granted, and that it was bound to contest plaintiff’s rights only in the action while the stay was pending therein and when it ceased by the reversal of the judgment the railway company was restored to the rights which it possessed prior to the signing of the agreement

The orders of the general and special terms must be reversed and the motion remitted to the special term for the action of that court under this view of the meaning of the stipulation, with costs to the railway company in all courts.

All concur.