author: Land on, J.:

text:
    MARIA G. WINNE, Respondent, v. THE ULSTER COUNTY SAVINGS INSTITUTION, Appellant.

      Parol license to enjoy an easement in an adjoining building — if not founded on a valu~ able consideration, it is revoked by a conveyance of the servient tenement — evidence— when notice to a corporation may be inf erred from a notice given to its trustees.

    The defendant erected a hanking house adjoining, and higher than, a building erected upon the next lot which was then owned by the plaintiff's grantor. Under the oral license or permission of the plaintiff’s grantor, the defendant erected upon its building a cornice projecting twenty-five inches over the roof of the adjoining house and at a height of twenty-five feet above it. In this cornice was a gutter from which the water, falling upon a portion of the defendant’s roof, flowed into and through a conductor to the gutter upon the roof of the adjoining house, from whence it flowed through a conductor to the ground. After this cornice and gutter had been so constructed and used for many years, the plaintiff purchased the adjoining house from the person by whom the said license or permission had been given.
    Upon the trial of this action, brought by the plaintiff to recover damages for injuries sustained by reason of her house being flooded with water by reason of the failure of the gutters and conductors to discharge the water running into them, the court charged that if there was a simple parol license given to the defendant by the plaintiff’s grantor, without any reciprocal use of the defendant’s lot, then that license was ended by the conveyance to the plaintiff, and no notice of its termination was required to be given by her to the defendant.

      Held, that the charge was correct.
    Upon the trial evidence was received showing that the plaintiff, by her husband, gave notice severally to three of the trustees of the defendants and to one of its servants who, among other duties, superintended the work of making repairs to its buildings, that the license was revoked.

      Held, that it was not error to admit the evidence; that although notice to the trustee might not of itself he notice to the corporation, yet it was a fact from which such notice might be inferred by the jury.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      F. L. Westbrook, for the appellant.

      Wm. lovdisbery, for the respondent.
   Land on, J.:

The bank building of the defendant is higher than the adjoining house of the plaintiff, both facing the same street. The defendant upon the oral license or permission of the grantor of the plaintiff projected the cornice of its bank building twenty-five inches over the plaintiff’s house, at an elevation of twenty-five feet above the gutter of the latter. The defendant, with the like license and permission, constructed in said cornice a gutter for the collection of the rain-water that fell upon a portion of the roof of the bank building, and then by a leader or pipe connected the gutter in the cornice with the gutter upon the plaintiff’s house, and from the latter gutter by another leader conveyed the rain-water to the ground. Except for the license the defendant had no right to do this. The plaintiff became the owner of her house and lot by virtue of a deed on the 23d day of February, 1880, at which time and for many years prior thereto, the cornice, gutters and leaders were and had been in position and use. The plaintiff’s house was injured by means of being flooded with water, which entered it upon several occasions after her purchase, because of the failure of the gutters and leaders adequately to discharge it. She obtained a verdict for damages and the defendant now appeals from the judgment awarding them, and from the order 'denying a new trial.

There was evidence tending to show that the plaintiff’s grantor gave the license to the defendant in consideration of a license to him, to enjoy the privilege of a urinal upon defendant’s lot, and that the plaintiff’s grantor did use the urinal upon defendant’s lot, and that such use was continued by the plaintiff after she acquired the lot.' Whether this was so was a question of fact left to the jury to determine. The court held, first, that if there was a simple parol license given to defendant by plaintiff’s grantor, without any reciprocal use of defendant’s lot in exchange, then that license was ended by the conveyance to the plaintiff; and, second, that if the license to the defendant was in consideration of the license to the plaintiff’s grantor to use the urinal upon defendant’s lot, and plaintiff after the conveyance to her continued that use, then the license to the defendant was continued by the plaintiff and could only be ended by notice to defendant of its revocation.

Tüe second proposition was not excepted to by defendant, but the first was. The court was correct in its first proposition. A simple parol license conveys no title or interest in the land of the licensor. (Wiseman v. Lucksinger, 84 N. Y., 31; Cronkhite v. Cronkhite, 94 id., 323.) It follows that tbe licensor by parting with bis title ends bis privilege to extend or continue tbe license ; and that tbe licensee cannot thereafter say that be bas tbe permission of tbe present owner, and tbe present owner can say tbat be took tbe land without burden! Such a license therefore ends by tbe conveyance of tbe licensor. It is also said to be personal from the licensor and to the licensee, and is' therefore gone if tbe licensor ■convey to another. (Miller v. A. and S. R. R. Co., 6 Hill, 61; Dubois v. Kelly, 10 Barb., 509; Mendenhall v. Klinck, 51 N. Y., 250; 3 Kent, 452.)

Exception was taken by the defendant to tbe admission of evidence, to tbe effect that tbe plaintiff by her husband gave notice' ■severally to three of tbe trustees of tbe defendant, and to a servant of tbe defendant who, among other duties, superintended repairs to its building, tbat the license was revoked. ■ Tbe exception was not well taken.

It may be conceded that no trustee bad been specially intrusted with tbe duty of taking care of this cornice and gutter, but tbat fact would not lessen, and perhaps ought to increase, tbe obligation of a trustee to communicate to the corporation a fact material for it to know respecting them. Notice to such a trustee may not of itself be notice to tbe corporation, but may be a fact from which notice to tbe corporation may be found, because tbe jury may presume tbat the. trustee did bis duty by communicating to tbe corporation tbe knowledge be bad obtained and which it was material tbat tbe corporation should know. Tbe presumption tbat such knowledge was communicated to tbe bank was strengthened by proof tbat it was given to three trustees, and also to tbe servant of tbe defendant, who superintended repairs to tbe building. Tbe •exception was to tbe admission of tbe evidence and to the refusal to nonsuit upon tbe ground tbat there was no evidence of notice of revocation, and in neither case presents tbe question whether tbe notice given to tbe trustees and to tbe servant was per se notice to tbe bank. Tbat tbe evidence was competent, and tbat from it tbe jury might find tbat tbe bank received notice of revocation we dp not doubt.

No evidence was given tbat authority was expressly given by tbe plaintiff to her husband to give tbe notice of revocation. But bis general agency, in behalf of the plaintiff, seems fairly inferable from the evidence. Certainly there was no such reason to suppose that he was an unauthorized meddler as in the case of Kellogg v. Robinson (32 Conn., 335), cited by the defendant.

The fact that the gutter, cornice and leaders were in place when the plaintiff purchased her premises, no doubt charged her with inquiry, as the defendant urges, with respect to the title of the defendant to have them there. But that inquiry, prosecuted till the truth was found out, would simply have disclosed that they were in place by no better title than the simple parol license of her: grantor. There was no equity that could enforce their remaining.

We see no facts in the case requiring the court to hold that the damage to the plaintiff was caused by her own neglect, nor do we think the verdict excessive.

Judgment and order affirmed, with costs.

LbakNed, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bx the Court :

license: Public Domain

text:
    LUCIUS LAWSON, Appellant, v. THE TOWN OF WOODSTOCK, Respondent.

      Practice — when an action may he continued in the name of the original plaintiff after he has made a general assignment— Code of Civil Procedure, secs. 449, 756.
    The plaintiff having, after the commencement of this action, made a general assignment for the benefit of his creditors, the defendant obtained an order' staying all proceedings herein until the assignee should cause himself to be substituted as plaintiff. On the hearing at Special Term the assignee opposed the application.

      Held, that the order was improperly granted and that it should be reversed.
    The provision of section 449 of the Code of Civil Procedure, requiring an action to be prosecuted in the name of the real property in interest, is modified by section 756 thereof, which allows an action to be continued in the name of the original party, although he may have transferred his interest therein to another person.
    Appeal from an order made at Special Term upon the motion oi the defendant, and in opposition to the objections of the plaintiff, staying all proceedings in the action until the plaintiff’s general assignee should be substituted as plaintiff.

      Wm Lounsbery, for the appellant.

      John E. Van Etten, for the respondent.
   Bx the Court :

Since the commencement of this action the plaintiff has made an assignment for the benefit'of his creditors 'to. one De Witt. The defendant has thereupon obtained an order staying all proceedings until De Witt shall cause himself to be substituted as plaintiff. The plaintiff appeals.

It is possible that where the cause of action has been absolutely transferred an order of this kind would do no injustice. But that is not the present case. The plaintiff is still interested in the claim, if anything is collected it will go to pay the plaintiff’s debts. Should there be a surplus under the assignment, that surplus would return to the plaintiff. On the other hand De Witt has no personal interest in the matter and may be reluctant to become a party to the litigation. He objected to this application on the hearing at Special Term. If he should refuse altogether to make himself a party, then the action would be forever stayed. This seems to be unjust. The plaintiff, even if he were irresponsible, would not by that fact be prevented from commencing the action. Why should he be prevented by such irresponsibility from proceeding with it ?

Furthermore, under the present Code the plaintiff’s attorney has a lien on the claim. It is not just to deprive him of this by staying the proceedings until De Witt be made a party plaintiff, when De Witt objects to becoming such a party.

Under the’ Code (§ 756,) the action may proceed in the name of the original party. That then is his privilege in spite of the transfer. If the assignee desires to come in he may be substituted ; but if he does not, we think it is not in accord with that section to prevent the original party from proceeding in his own name. The provision that an action must be prosecuted in the.name of the party in interest is evidently modified by the section last cited.

Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs.

Present — LEARNED, P. J., and LaNDON, J.; WestbrooK, J., not sitting.

So ordered.


author: Landon, J.:

text:
    ROSWELL A. PARMENTER, Respondent, v. THE BOSTON, HOOSAC TUNNEL AND WESTERN RAILWAY COMPANY, Appellant. JOHN TATRO, Respondent, v. THE SAME, Appellant.

      Evidence — a pa/riy reading pa/rt of the evidence given on a former 1/rial cannot he compelled to read the whole of it.

    This action was brought to recover damages for the destruction of a building belonging to the plaintiff, which was alleged to have been set on fire by sparks escaping from the smoke-stack of one of defendant’s locomotives. Upou the trial, under a stipulation that “ either party might read from the testimony taken on the former trial, subject to all objections,” the defendant’s counsel read a portion of the testimony given by a witness upon the former trial, which tended to show that the smoke-stack was in good condition after the fire. The counsel proposed to omit the following question: “ Didn’t you after that change it, and if so, what did you do it for, if it was in good order,” stating that he had objected to the question upon the former trial and wished now to object to it.

      Held, that the court erred in compelling the defendant’s counsel to read the question and answer as a part of his testimony.
    A party reading part of a statement or correspondence cannot be compelled by his adversary to read it all. The opposite party may, if he desires so to do, himself read so much of the remainder as tends to qualify or explain what his adversary has read.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an oz’der denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Esek Oowen, for the appellant.

      JR. A. Parmenter for the respondents.
   Landon, J.:

The plaintiff’s buildings were destroyed by fire caused by sparks thrown from defendant’s locomotive. The defendant sought to establish that the smoke-stack of the locomotive was of proper construction and in good order. Upon the trial under a stipulation that “ either party might read from the testimony taken on the former trial, subject to all objections,” defendant’s counsel was reading from the' testimony'of a witness.' The testimony was to the effect that the smoke-stack had been examined by the witness after the fire and was in good order. Defendants’ counsel, as the case recites, proposed to omit reading the following question: “ Didn’t you after that change it, and if so, what did you do it for if it was in good order?”. Defendants’ counsel stated that the question was objected to on the former trial, and that he wished to ■object to it here, that he thought it improper and did not wish to put it in as his own testimony. The plaintiff’s counsel objected to the omission and the court said, “ I think it is not quite right to read here and there; I think you should read it; you may have an exception.” The defendants’ counsel then read the question and answer. The answer was to the effect that he had altered it so as to get out more steam.

"We think this was error. It was the privilege of the counsel to read from the testimony such parts as he thought would help his case. If he- omitted anything which the opposite party desired to have read, the stipulation allowed him to read that himself. And, without reference to the stipulation, the rule is, that where one party reads a part of a statement or writing, the opposite party may read -so much of the remainder as tends to qualify or explain what has been received. (Rouse v. Whited, 25 N. Y., 170; Grattan v. Metropolitan Life Ins. Co., 92 id., 284.) A party reading part of a -statement or correspondence cannot be compelled by his adversary to read it all. The other party can read it himself if he wants it, .and if it is material and competent within the rule above stated. (Stone v. Sanborn, 104 Mass., 319; Barrymore v. Taylor, 1 Esp., 326; De Medina v. Owen, 3 C. & K., 72.) The rule protects both parties and allows the main statement and all its qualifications to be received in evidence. But to compel the defendant in this case to read the whole testimony, was to compel him to read that part which he did not think admissible within the rule first stated, and to which he had objected upon the former trial, and wished to ■object to now if it should be offered. It is quite possible that the plaintiff would not have taken the risk of reading it under objection and exception, and possibly the defendants’ objection would have been sustained. The answer to the question was important, and its effect is suggested by the question, why alter the smoke-stack if in good order? Because it was altered the jury may have found that it was in bad order.

For this error the judgment must be reversed, and a new trial ordered, costs to' abide the event.

As the case of Tatro was tried at the same time and upon the same evidence and rulings, the same disposition must be made of it.

LearNed, P. J., concurred; Bocees, J., not acting.

Judgments and orders reversed, new trial granted, costs to abide event.


author: LeaeNed, P. J.:

text:
    JASON BLOODGOOD, Respondent, v. ANN AYERS and Others, Appellants.

      Diversion of water— water cannot he diverted until it has become a water-course — right of the owner of a spring to a reasonable use of its waters.

    In this action, brought to restrain the defendant from diverting the waters of an alleged water-course, it appeared that there was a spring upon the defendant’s land, about 120 feet from the line dividing the defendant’s from the plaintiff’s-land. Water had for many years been conducted from the spring through a. trough or leader about three inches wide to a watering trough, distant about twenty feet from the spring. The surplus water flowing from the spring disappeared in the ground, reappearing again near the division line, and flowing from that place in a well-defined channel to and over the lands of the plaintiff. The defendant diverted the waters of the spring and conducted them through logs to a point upon his lands, where they were discharged in such a manner as not to flow in the old channel or on the plaintiff’s lands.

      Held, that as the waters of the spring were diverted before they had reached or formed a natural stream flowing in a defined bed or channel with banks and sides, the plaintiff had no cause of complaint.
    That even if it were assumed that there was a water-course at the spring, yet as the defendant was entitled to use so much of the water as was needed for domestic and agricultural purposes, it was erroneous to grant a judgment requiring an absolute return of the waters diverted, and forbidding even a reasonable use thereof.
    Appeal from a judgment, entered upon th'e trial of this action by the court without a jury, and from an order refusing to set aside the verdict of a jury upon two questions submitted to them.

      8. Crowell, for the appellants.

      James B. Olney, for the respondent.
   LeaeNed, P. J.:

This is an action in equity to restrain tbe defendants from continuing to divert tbe waters of an alleged stream or water-course. Two questions were submitted to a jury, wbo found each for tbe plaintiff. Tbe court found other facts, and rendered a decision substantially according to tbe prayer of tbe complainant.

Tbe plaintiff’s land and tbe land of the defendant Ayers adjoin. On the land of Ayers, and about 120 feet from tbe dividing line, there is, and lias been for over fifty years, a spring. For some forty years prior to tbe alleged diversion tbe owners and occupants of tbe Ayers farm had kept and maintained a watering-trough some ten or twenty feet from that spring, to which tbe water bad been brought by a trough or leader about three inches wide, extending from the spring to tbe watering-trough. Tbe end of this at tbe spring was usually packed around with clay, to prevent tbe escape of the water except through tbe leader. On each side of tbe trough tbe ground rises, more on tbe west side ; and tbe ground also slopes south-easterly towards tbe line fence. . Tbe jury found that a stream or watercourse flowed in a well defined bed or channel down to and over tbe plaintiff’s land, with banks and channels, and that tbe same was supplied from tbe natural overflow of the spring.

Tbe claim of tbe defendants is, that tbe overflow at the trough disappeared in tbe ground, and ran under ground for some 100 feet; that it thus did not have tbe character of a running stream. It would seem, however, not to be disputed, that about twenty feet from tbe division line the water flowed on the surface of the ground. It crossed tbe division line, and at about twenty feet therefrom on tbe plaintiff’s land was received by him in what is called a reservoir and was used by him.

About 1879 the defendants put pump logs in the spring and conducted the water south-westerly through their land, for a considerable distance, say about nine chains, and discharged the same, after using it, in such a manner that it did not return to the natural course or to the plaintiff’s land. This diversion the plaintiff seeks to restrain.

It should he noticed that the defendants’ act is claimed to be, not simply the use of a reasonable quantity of water for cattle and for domestic purposes; nor is it claimed to be simply the using of that quantity of water at a different place from that where it had been formerly used. But the alleged wrong is that the defendants, not merely use what they need, but divert the water which they do not need and do not use, so that, instead of flowing on the plaintiff’s land, the surplus is carried off in another direction and does not come upon his land at all.

The question then is, not whether the defendants may not use all that they need 'for these purposes, but whether they may divert that surplus which they do not need, and which, but for their diversion of it, would flow on the plaintiff’s land. (Arnold v. Foot, 12 Wend., 330.)

The question submitted to the jury did not distinctly present the point whether the stream or water-course flowed from the spring; and the defendants by several requests asked the court to find that it did not. These requests were refused. And the defendants now urge that there is no finding and no evidence that any surface stream or water-course flowed within 100 feet of the spring. It is true that the jury found that the stream or watercourse which flowed bn plaintiff’s land was supplied from the natural overflow of the spring. This however is not enough to maintain the plaintiff’s action. For instance, the surface water which runs down a man’s hill may reach a water-course on his land and that water-course may run upon his neighbor’s land. Yet these facts would not prevent the man from detaining the surface water by ploughing or otherwise. So if there be a spring on a man’s land, and the overflow therefrom finally reaches a water-course, still the owner of the land may use or divert the water of the spring, although such use or diversion may prevent the water from reaching the water-course. This is one of the instances decided in Broadbent v. Ramsbothom (11 Exch., 602), which has been often cited with approval. (See Village of Delhi v. Youmans, 45 N. Y., 362.) To the same general effect is Rawstron v. Taylor( 11 Exch., 369). And it is held in this state that one may by filling in his land prevent the draining upon him of the surface water from higher adjacent land. (Barkley v. Wilcox, 86 N. Y., 140.)

This is contrary to the doctrine held in some states, but it is in accord with the views above stated, viz., that until water has reached and formed part of a water-course it may be diverted. (Goodale v. Tuttle, 29 N. Y., 459.)

The question tben must be wbetber, at the point where the defendants interfered with the water, viz., at the spring, there was a natural water-course, as defined in Barkley v. Wilcox (86 N. Y., 143 ; see the language at page 147). We think that the jury has not so found, nor can it be so found upon the evidence. ■ That the waters of the spring eventually reached a water-course we may assume. But there was no water-course at the spring. The whole water had been for years turned into á watering trough. The surplus or overflow disappeared in the ground. Farther on it probably appeared on the surface. But this does not make the case like that of Macomber v. Godfrey (108 Mass., 219), where an existing water-course spread out over a level meadow with no defined channel, and yet was held to have preserved its character of a water-course.

The spring which rises on a man’s land, like the rain which falls on it, are his. It is only when the water, coming, as probably it always does, from the rain in its origin, has actually formed itself into a “ natural stream flowing in a defined bed or channel, with banks and sides,” that its use -is restricted by those rules which the plaintiff here seeks to enforce.

There is another point. The defendants, by the judgment, are decreed to return the waters of the spring back to their natural bed as they ran prior to the diversion. Now, assuming even that there was a water-course- at the spring, the' defendants were entitled to use so much as was needed for domestic and agricultural purposes. They could use such amount where they chose. Possibly by carrying the water to a distance there might be some waste. But the question would be whether the use was unreasonable or the waste unnecessary. (Wadsworth v. Tillotson, 15 Conn., 366.) Or as is said in Gillett v. Johnson (30 Conn., 183), whether the water was used in a reasonable manner so as not to deprive the owner below of a sufficient supply. The judgment, therefore, should not have forbidden a reasonable use and should not have required an absolute return of the waters.

We think that the judgment should be reversed and a new trial granted, costs to abide the event.

Present — LeaeNed, P. J., Bocees and LaNdoN, JJ.

Judgment reversed, new trial granted, costs to abide event.


author: Learned, P. J.: Landon, .T.

text:
    ELIZA PIERCY, Appellant, v. WILLIAM J. AVERILL, HENRY B. HOWARD and Others, Respondents.

      Public officers —liable for damages occasioned by their negligent acts or omissions — liability of, for the negligence of employees — they a/re not excused from liability by the act that their principal is relieved therefrom — liability of the common council of the city of Ogdensburg for its neglect to keep sidewalks m repair — 1881, chap. 95.
    In this action, brought against the persons holding the offices of mayor and aldermen of the city of Ogdensburg, the complaint alleged the incorporation of the city, and that the mayor and aldermen constituted its common council; that by the charter of the city, and the acts amending the same, certain duties were imposed upon the defendants, constituting the common council, anjong which were the duties of commissioners of highways of towns, and the further duty of compelling every person to clean snow and dirt from the sidewalk in front of his premises; that the defendants negligently and carelessly, after full knowledge, allowed, suffered and permitted a certain sidewalk to become out of repair and large quantities of snow and ice to accumulate there and the sidewalk to become and remain in an unsafe and dangerous condition; that the plaintiff, without fault on her part, slipped and fell on the sidewalk, and sustained injuries to recover damages for which this action was brought.

      Held, that a demurrer interposed by the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, should be overruled. (L andón, J., dissenting.)
    That the duty of keeping the sidewalks and streets in repair was a ministerial duty, and that a negligent or careless performance thereof, or an omission to perform the same, rendered the defendants, who were public officers, liable to any person specially injured thereby.
    That the facts that the charter did not impose upon the defendants the doing of the manual work of repairing, and that they were not responsible for the negligence of the persons appointed by them to do such work, might be urged upon the trial to show that the defendants had not been guilty of negligence, but could not be considered upon this appeal, where their negligence was admitted by the demurrer.
    That section 81 of title 4 of chapter 95 of 1881, declaring the city not to be liable for any injury caused by a sidewalk being out of repair, or by slipping upon snow or ice thereon, did not relieve the defendants from liability for any damages occasioned by their own negligent acts and omissions, even though they should be considered as the agents of the city, which was itself relieved from all liability.
    That it could not be held that under the charter the common council had no power and duty to discharge in respect to keeping the streets in repair, and that the question as to whether or not the defendants had in fact performed their full duty must be determined upon the trial and not upon the argument of a demurrer.
    That the argument that public policy should forbid the court from holding the defendants liable, inasmuch as such a rule of liability would drive from the common council persons of responsibility, was entitled to but little weight.
    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to tbe complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Morris, Kellogg eft Morris, for the appellant.

      D. Magone, for the respondents.
   Learned, P. J.:

This is an appeal from an interlocutory judgment sustaining- a ■demurrer to the complaint.

The action is against the persons who hold the offices of mayor and of aldermen of the city of Ogdensburg. The complaint sets forth briefly, and by reference to the statute, the law which incorporated the city. It states certain duties which, by that law and its ■amendments, are imposed on the mayor and aldermen, constituting the common council, and among them it alleges are the duty of ■compelling every person to clean snow and dire from the sidewalk in front of his premises, and the duties of commissioner of highways in towns. It alleges that defendants negligently and carelessly, after full knowledge, allowed, suffered and permitted a certain sidewalk to become out of repair, and large quantities of snow and ice to accumulate there, and the sidewalk to become and remain in an unsafe and dangerous condition; and that the plaintiff, without her fault, slipped and fell on said sidewalk and was injured.

The general rule in this State is, that public officers, charged with a ministerial duty, are answerable in damages to any one specially injured by their carelessness and negligent performance of, or an omission to perform the duties of their office. (Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoof, 44 id., 113; Clark v. Miller, 54 id., 528; Bennett v. Whitney, 94 id., 302.) Of course this rule does not apply to an action which is, in any sense, judicial.

Now it is undoubtedly true that the deciding whether or not a sidewalk shall be made, and of what materials and of what grade it shall be made is a quasi judicial act. But, on the other hand, the keeping of a sidewalk or street in repair has often been held to be a. ministerial act. We may refer, by way of illustrating these principles, to the two decisions of Urquhart v. Ogdensburg (91 N. Y., 67) and Same v. Same (97 id., 238). If the duty is imposed on a public officer of keeping a sidewalk or street in repair, he cannot excuse himself on the ground that, in his judgment, it was best not to repair it. (Wilson v. Mayor, 1 Denio, 595.) He may excuse himself, of course, by showing that he did the best that he could.

The defendants, in the present case, urge that the duty is not put upon them of doing the m.anual work of repairing sidewalks or of keeping the snow off the streets; that they cannot attend to this in person; that, therefore, their only duty was to appoint persons to’ do the manual work; and that for the negligence of these employees they are not liable. (Walsh v. Trustees, etc., 96 N. Y., 428.) This argument might be very appropriate, if the facts of the case had been proved on a trial, and if plaintiff had failed to show that the defendants had themselves been negligent, and it had appeared that the only negligence was that of their employees. Yery possibly these defendants are not the “legal superiors” of any person employed by them, and are not liable as superiors-for the misconduct of such employees. But that is not to the-point. The demurrer admits that the defendants have been negligent in not keeping the sidewalk in repair and free from snow and ice. The allegation is. such as would be made in an action against a commissioner of highways or similar officer. It is not the duty of a commissioner of highways to do the mcmual work of repairs. Yet it may be shown, by proper proof, that he was negligent in-failing to keep the highway in order, and that he was therefore-liable to one who was injured. So it is not the duty of a corporation, that is, of the legal person to do the manual work of ropairing streets. Yet a complaint alleging the duty and the neglect of a corporation would be proper... If it is the duty of a corporation to repair streets, it is no answer to an allegation of neglect to do this that the duty was not to do the manual work, but only to cause the repairing to be done. (Urquhart v. Ogdensburg, ut supra, second case.)

The defendants again urge that they are not liable for a neglect of their duty, because by the city charter the city is declared not to be liable for any injury causea by a sidewalk being out of repair, or by slipping upon snow or ice thereon. (Sec. 31, title 4, cbap. 95, Laws 1881.) They argue that if the principal is not liable, they, the agents, are not. It is hardly accurate to say that the city and the common council stand merely in the relation of principal and agent. Furthermore, in Robinson v. Chamberlain (ut supra), a canal contractor was held liable for neglect, while it is a familiar doctrine that the' State is not liable. But if we adopt the view that the common council are the agents of the city, still there is no-reason why an agent should not suffer for damages occasioned by his wrongful act, even though his principal be not liable. If a statute should relieve a railroad company from any liability for the wrongful act of its servants, there would be no reason why the servants should not continue liable for their own wrongful’acts. If the doctrine of respondeat superior were abolished, the doctrine that he who does an injury should pay the damages he has caused would be unaffected. Further, in the case of Bennett v. Whitney (94 N. Y., 302), a street commissioner of Binghamton was held liable for negligence, although the charter exempted that city from liability. It would be illogical to say that public officers were relieved from personal responsibility for their negligence, because a statute had exempted the corporate body which appointed them from answering for their misconduct. That action, indeed, was commenced against the mayor and aldermen as well as the street commissioner. A nonsuit was granted as to the mayor and aider-men, no negligence having been shown against them. But the language of the opinion is broad enough to sustain the present action, if, on trial, these defendants should be proved to have been negligent.

The question then remains, have the common council the duty of keeping in repair the streets? This does not mean are they absolutely bound to keep them in repair, but have they any duty in that respect ? If they have any such duty, then it is possible for them to be negligent in its performance. If negligent, then, on the general principle, they are liable for the injury caused by their negligence. (Bennett v. Whitney, ut supra.) The defendants must, argue that they have no ministerial duties whatever in this respect, and that they may utterly neglect all care of the streets. The common council has the power, and is under the duty to exercise the power, of commissioners of highways (tit. 4, sec. 20, sub. 13), and “ to direct the manner and superintend the repairing of sidewalks.” (Sub. 12.) It seems hardly necessary to refer to the statutes respecting the commissioners of highways, to show that they have a duty (limited it may be by their funds) to repair the highways within their jurisdiction. (See, also, Ehrgott v. Mayor, 96 N. Y., 264; Barnes v. Dist. Columbia, 91 U. S., 540.) We cannot hold that this common council have no power and no duty to discharge ■ in respect to keeping the streets in repair. Whether or not the defendants did their whole duty is a matter to be determined on the trial. On this demurrer their negligence is admitted, and in defense'they insist that they had no duty to do. With this view we disagree. (Bennett v. Whitney, ut supra.)

A further argument is that public policy should forbid us to hold the defendants liable, inasmuch as such a rule of liability would drive from the common council persons of responsibility. We cannot give much weight to this argument. The defendants say we ought to be allowed to accept office and knowingly to neglect our duties, without any liability to those whose limbs are broken through our negligence, because no responsible persons will accept office except on the condition that they may neglect its duties with impunity. It is enough to say in reply to this that it is better to have irresponsible officers who attend to their duties than responsible officers who do not. Nor has it yet been found that the principle of liability for official misconduct has deterred worthy men from accepting office. If the sole duty of these defendants was legislative, a different question would arise. If on the trial the only proof of alleged negligence should be some misjudgment in doing legislative work, very probably no liability would be proved. But there certainly is some ministerial, as well as some legislative, duty to be done by these defendants in this respect, or at least there may be such ministerial duty. To keep streets in repair is strictly ministerial, though to establish a grade may be legislative. Now if it be the duty of these defendants to cause the streets to be kept in repair, then for neglecting that duty they are liable.

The judgment should be reversed, the demurrer should be overruled, with costs below and in this court, with leave to defendants iii twenty days and on payment of costs to withdraw their demurrer and to answer over.

Bockes, J., concurred in the conclusion reached in the opinion of Leaened, P. J.

Landon, .T.

(dissenting):

I cannot concur. In no way are the defendants charged by the complaint with negligence except as they have omitted to perform certain duties respecting a sidewalk, within their legislative jurisdiction, as members of the common council of the city of Ogdensburg.

By the charter of the city, which is by the complaint made the chart of the defendants’ duties, jurisdiction is conferred upon the common council as the complaint recites, “ to direct the manner and superintend the making and repairing of the sidewalks and crosswalks in said city; to compel every person or corporation in the city to clear the snow and dirt from off the sidewalk in front of all premises .owned or occupied by such, person or corporation, and to exercise the duties of commissioners of highways of towns within the corporate limits of said city.”

"Whatever else is said in the complaint respecting the duties of the common council under the powers quoted, is the pleader’s conclusion of law thereupon, and therefore is not admitted by the demurrer, which only admits the facts pleaded.

By the charter it appears that the common council shall only transact business as a board sitting in public.” Any manual or physical labor connected with clearing snow from sidewalks or compelling others to do it, or in superintending repairs, is by the nature of the case excluded from their duties. To their judgment and discretion, to be exercised in an assembly of the whole, and after such discussion and consideration as they deem proper, is committed by the charter, the making of such prudential regulations respecting the streets and sidewalks, as they shall deem wise, within the powers quoted.

How and when, and to what extent, shall they make prudential regulations for the repairs of the sidewalks, and to compel persons to remove snow and ice from them ? Every one will agree that they should take a practical view of the situation. Ogdensburg is tbe most northerly city of the State. In the winter, constantly to keep the sidewalks free from snow and ice is an impossibility. Lex non cogit ad impossibilia. The statutory duty of the common council is subject to the laws of nature. This fact is recognized by the charter, which by express terms exempts the city from common-law liability to any person injured “ by slipping upon any snow and ice ” upon any sidewalk, “ or by reason of the same not being in repair.” It may be conceded that this exemption of the city does not also exempt any ministerial officer from the consequences of his own personal negligence, but it is important as affecting the judgment and discretion of the common council in making the prudential regulations to be executed by their ministerial officers. For if instructed by the statute that their omission cannot involve the city in liability, and taught by experience that their efforts would be practically fruitless, they neglect to promulgate regulations against the elements, their judgment and discretion would seem to be exercised with practical wisdom.

Now, the plaintiff was injured either because the sidewalk was out of repair or because it was slippery from snow or ice. If the view we have taken of their duties is correct the common council had no ministerial duty respecting either category. A ministerial duty, as was said in the case of Mississippi v. Johnson (4 Wall., 498), the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion.

Their duty under the charter was to make such legislative regulations as possibly might result in providing for the appointment, and defining the duties, of a ministerial officer, but they are hot, and from the nature of their body and duties they cannot be, ministerial officers with respect to the sidewalks. The legislature under the Constitution has intrusted, but not abandoned to the common council, so much of its legislative power as relates to the care of the sidewalks of the city of Ogdensburg. The legislature might have exercised that power itself. It may exercise it notwithstanding the charter. It is probable that the proper exercise of it, within the limits of the charter, will involve local legislation providing for the creation of ministerial officers and prescribing their duties. And thus the distinction between the legislative body which creates the ministerial office and prescribes its functions, and tbe ministerial office itself becomes manifest. Herein do we clearly discern the distinction between the case of this common council and the many cases in the boobs in which ministerial officers have been held liable to third persons injured by their negligence. These cases all instruct us that the maker of regulations, involving judgment and discretion, is not liable for his failure either of action or of wise action ; but that the executor of such regulations, after they are made, may be liable for his. failure to execute them or for his mis-execution of them. Just as a judge is not liable for a bad judgment or for no judgment, but if he pronounces one the sheriff is liable if he fail to do his duty in executing it. This common council is the judge with respect to what shall be done with these sidewalks, and when they direct what shall be done and who shall do it, the latter and not the former may be liable to any one injured by his negligent performance or non-performance.

The charter authorizes the jjommon council “ to exercise the duties of commissioners of highways of towns within the limits of the city,” but with this significant qualification: “ so far as those powers and duties are consistent with the other parts of the act.” That is, so far as a deliberative legislative body, acting only in session duly assembled, can provide by proper ordinances for the highways and appoint the ministerial officers to carry out their ordinances. As- such commissioners of highways they have no ministerial duties respecting sidewalks.

No precedent for this action is cited. It is believed that public policy strongly condemns it. This common council, in the exercise of its deliberative and legislative functions, should not be coerced or coercible, annoyed or threatened by the suit of a private party, who, from motives of gain, may too lightly charge an omission of duty. The duties of this municipal legislature differ in extent, but not in kind, from the duties of the State or national legislature. Not for the protection of the legislator, but for the protection of the people, the State and national constitutions declare that he shall not be questioned in any'other place for his official acts, and these constitutional provisions were but the formulation or what had long been the unwritten law. If any legislator needs this protection, it is the local legislator who is so constantly exposed to the presence and pressure, and sometimes the exasperation of passion and interest.

Tlie judgment should be affirmed.

Judgment reversed, demurrer overruled, with costs below and in this court, with leave to defendants in twenty days to withdraw demurrer and answer over, on payment of costs.


author:
LeaeNed, P. J.: BocKes, J.:
     LaNDON, J.

text:
    DANIEL O’BRIEN, Respondent, v. AUGUSTUS B. FERGUSON, Appellant.

      Usury — 1 Revised Statutes, 772, see. 8 — a grantee taking a convey anee subject to a mortgage is not “ the borrower ” within the meaning of that act.

    In April, 1873, the plaintiff, being the owner of a farm upon which he desired to borrow money, applied to one Silas A. Ferguson, a brother of the defendant in this action, for a loan of money to be secured by a mortgage upon the farm; the farm was then already incumbered by mortgages and judgments. Acting upon Ferguson’s suggestion the plaintiff conveyed the farm to one James P. Foland, who executed a bond and mortgage for $2,700 to the plaintiff, which were subsequently assigned to the defendant for the sum of $2,430, on Silas A. Ferguson paying that amount for the mortgage from money belonging to the defendant, which had been placed in his hands to be loaned. The defendant did not know at the time the loan was made that any bonus was retained by Silas, as the latter charged him with the full amount of the mortgage in his account. In January, 1874, Foland conveyed the premises to the plaintiff’s father in consideration of $4,000, subject to the payment by the grantee of the said mortgage, amounting to $2,700 and interest thereon. In 1876 the plaintiff’s father conveyed the premises to the plaintiff’s wife for the same consideration, subject to the payment by the grantee of the said mortgage. In 1878 the wife conveyed them to one Conway for $500, subject to the payment of the said mortgage, and in 1879 Conway conveyed them to the plaintiff for the consideration of $3,000, by a warranty deed not subject to any condition.
    Upon the trial of this action, brought to restrain the defendant from a statutory foreclosure of his mortgage, and to compel him. to satisfy and discharge the same on the ground of usury, a judgment was entered declaring the mortgage to be usurious and requiring the defendant to execute a discharge thereof, but not restraining its foreclosure:
    Held, that the plaintiff was not a borrower within the meaning of section 8 of 1 Revised Statutes, 772, and could not, therefore, obtain a discharge of the mortgage without tendering the money actually received upon the loan.
    (Landon, J., dissenting.)

      That, as far as appeared, the consideration of the bond and mortgage was .the _ conveyance of the land by the plaintiff to Poland, and they had, therefore, a valid inception when delivered by Foland to the plaintiff, in which case the subsequent assignment of them by the plaintiff for less than their face was not usurious. (Per Learned, P. J.)
    That if the difference between the face value of the bond and mortgage and the amount paid therefor by the defendant was retained by the defendant’s agent, Ferguson, for his compensation, that transaction did not establish the existence of usury as against the defendant. (Per Learned, P. J.)
    Appeal fiom a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court, without a jury.
    . Prior to the trial by the court, certain specific questions had been submitted to and passed upon by a jury.

      Albert Hobbs, for the appellant.

      Gilbert, Badger dé Kilburn, for the respondent.
   LeaeNed, P. J.:

This action is brought, first, to restrain a statutory foreclosure of a mortgage, and, second, to compel the satisfaction thereof. The ground of relief is alleged usury. The judgment is that the mortgage is usurious, and that the defendant execute a discharge thereof. There is no injunction restraining the foreclosure.

It might be that any person, owning the land, could bring an action to restrain, on the ground of usury, a statutory foreclosure, without a tender of the money borrowed. But it was a well-settled-principle of equity that when an action was brought affirmatively to obtain a; discharge of mortgage on the ground of usury, the money actually received must be tendered. This rule of equity has been altered by statute as to the borrower, and only as to him. (1 R. S., 112, § 8.) This plaintiff is not the borrower. He was not personally liable for the loan, and there is no evidence that he has become liable. He, therefore, is not within the privilege given by the statute.. (Buckingham v. Corning, 91 N. Y., 525; Post v. Bank of Utica, 1 Hill, 391.) Even the actual borrower, who has parted with the incumbered property and then has repurchased it, is no longer the borrower under the statute. And that is the condition of this plaintiff, in the view most favorable to him. (Schermerhorn v. Talman 14 N. Y., 93; Wright v. Clapp, 28 Hun, 7.) The only relief then which the plaintiff should have had, if he had made out a case of usury, was an injunction restraining the statutory foreclosure. He was not entitled to this preventive remedy of a discharge of the mortgage, except on the condition of doing equity. (Fanning v. Dunham, 5 Johns. Ch., 122.)

The only matter alleged in the complaint as a ground of action was usury in the mortgage. The plaintiff was allowed to show, against defendant’s objection, that about the same time he sold certain personal property to one Foland, and took back a chattel mortgage for the price, $1,130, which was done to pay off judgments on the real estate, and that he assigned that chattel mortgage to Ferguson’s agent to secure $600, of which said agent gave him $540. This transaction did not show usury in the real estate mortgage. It is not even proved that the sale of this personal property to Foland was fictitious.-

The transaction in regard to the mortgage was in substance this: The plaintiff was the owner of a farm, and in April, 1873, applied _to one Silas A. Ferguson to borrow money. There were then there three -mortgages and some judgments on the farm. The jury have found that, at Ferguson’s suggestion, the plaintiff conveyed his farm to James P. Foland, and Foland executed to plaintiff a bond and mortgage for $2,700, and that the plaintiff assigned said bond and mortgage to the defendant for the sum of $2,430. Silas A. Ferguson at the time had money of the defendant in his possession as agent, for the purpose of loaning the same, and used such money in this transaction. There is, however, some inconsistency between the verdict and the findings of the court, for the court finds that Ferguson paid not $2,430, but $2,569.11, by paying off incum-brances on the land, all of the money being applied in that way.

This transaction, took place in April, 1873, and in the same month the bond and mortgage were assigned to the defendant. He had no knowledge that the mortgage was bought at a discount until June, 1874. Silas F. Ferguson charged his brother, the defendant, $2,700 for the mortgage, or, as .he says elsewhere, he charged the $250 to his brother April, 1873.

In January, 1874, Foland executed a deed to Daniel O’Brien senior, plaintiff’s father, of the aforesaid premises for the consideration of $4,000, subject to the payment by said grantee of said <mortgage, amounting to $2,700 and interest thereon, which deed was duly recorded.

Subsequently, in August, 1876, a deed was executed by said Daniel O’Brien, senior, to Hannah O’Brien, plaintiff’s wife, conveying said premises for the consideration of $4,000, subject to payment Toy said grantee of said mortgage, amounting to $2,700, and interest thereon, which deed was duly recorded.

Subsequently, in October, 1878, a deed was executed by said Hannah P. O’Brien to Patrick Conway, conveying said premises for the consideration of $500, subject to the payment by the gramiee ■of said mortgage cmd interest, which deed was duly recorded.

Subsequently, January, 1879, a deed was executed by said Conway to plaintiff, conveying said premises for the consideration of $3,000, not subject to any condition, and with warranty, which deed was duly recorded.

Now, if we assume for the present that the mortgage was usurious, it is plain that Poland was the debtor, and that the mortgage was a lien on land of his. He had the right to sell the land, and on, such sale he could charge the duty of paying the mortgage on the grantee; and, if the grantee accepted the deed on the terms of paying the mortgage, the grantee had no right to assert that the mortgage was usurious. The deed from Poland to O’Brien, senior, specifies the amount of the mortgage at $2,700, and interest, and states that the deed is subject to payment by O' Brien, senior, of this mortgage. O’Brien therefore could not assert that the mortgage was usurious; because, in consideration of the conveyance, he had agreed to pay this definite sum. And that agreement was valid.

The same may be said of the conveyance to Hannah, and of her conveyance to Conway. Conway, then, who was the owner of the land when the statutory foreclosure was commenced, was bound to pay the mortgage, and the mortgage was a lien on the premises in his hands. O’Brien, the plaintiff, was not then in any way liable as guarantor, or otherwise, on the bond, and he had no interest in the land. He was not the original obligor, and he had assumed no liability. When, therefore, he took a conveyance from Conway he stood in no better position than Conway stood in respect to the premises.

This doctrine may be stated in another way, viz., that usury is a personal defense, which may be waived by the debtor. If waived by him, it cannot be asserted by others. Foland, the debtor, waived this by his conveyance to O’Brien, senior. It cannot now be asserted by a remote grantee of O’Brien, senior. (Union Dime Savings Bank v. Wilmot, 94 N. Y., 221, at 228; Shufelt v. Shufelt, 9 Paige, 145; Sands v. Church, 6 N. Y., 347; Murray v. Barney, 34 Barb., 336.)

Bnt, again, a mortgage executed for a valuable and sufficient consideration is not usurious, notwithstanding a previous agreement, with a third person to purchase it. (Dunham v. Cudlipp, 94 N. Y., 129; Smith v. Cross, 90 N. Y., 549.) The consideration of this mortgage executed by Foland to plaintiff was the conveyance by plaintiff to Foland of the premises. This was not a mortgage which had no inception until the delivery to Ferguson. If, for instance, plaintiff, without conveying his land, had executed a mortgage to Foland without consideration, in order that Foland might sell it to Ferguson and that plaintiff might receive the avails, then there would have been the case of a mortgage which had no legal inception until delivery to Ferguson, and if Ferguson had paid less than the face-the transaction would have been usurious. But that is not this case. Foland received value for his bond and mortgage, and there is no finding and no evidence whatever that he was not to pay his bond, In the language of Smith v: Cross (ut supra), O’Brien actually divested himself of all interest in the real estate, and vested his absolute title in Foland. Furthermore, he has affirmed the validity of the conveyance to him hy conveying the premises to O’Brien, senior, and by obtaining an obligation from him to pay the mortgage. It cannot then be said that Foland received no consideration for the m ort-gage, and that the mortgage was invalid until delivery to Ferguson.

There is still another question. The defendant did not reside in the same place with his agent, and knew nothing of the alleged usury. The agent had the money of the defendant, and retained to his own use the,difference between $2,700 and the amount paid on the liens, $2,569.11, about $130. The defendant did not, so far as appears, get any benefit from this. It appears to have been retained by his agent by way of compensation. Indeed, the agent says that he charged his principal $250, which is more than the amount deducted.

The plaintiff’s counsel urges that this question should be determined according to the law affirmed by the Court of Appeals at the time the decision was rendered (1880), and says that at the time of the trial of this action the leading case was Estevez v. Purdy (66 N. Y., 446). That case does not seem to sustain the plaintiff’s position here. The doctrine of Algur v. Gardner (54 N. Y., 360), in the Commission of Appeals, is not sustained in the more recent-cases of Philips v. Mackellar (92 N. Y., 34); Van Wyck v. Waters (81 id., 352). It cannot be material to the question of usury whether the agent represented to the borrower that the bonus was for the lender’s benefit or for his' own. The question is, what was the actual truth. If the agent took the bonus for his own benefit and without the knowledge of the principal, then under Philips v. Maekellar there is no usury. And if there is no usury at the time of the transaction, subsequent acts cannot make that usurious which was not usurious in its inception.

It is true that, about a year after the loan was made, this defendant learned of the alleged usury. But what could he then do ? He could not alter the agreement that had been made a year before. (Miller v. Hull, 4 Denio, 104.) He could not compel the borrower to annul the transaction. To bring an action on the mortgage and to collect interest was not held, in Philips v. Mackellar, to be such a ratification of the transaction as to make it usurious. And at the end of that opinion it is stated that the principal could not be said to have knowledge that the mortgage was usurious until the decision of the court to that effect.

For these reasons the judgment should be reversed and a new trial granted, costs to abide event.

BocKes, J.:

I concur for reversal on the first point discussed in the foregoing opinion irrespective of other questions urged by the counsel for the appellant. The reasoning of Judges SeldeN and Denio, in Schermerhorn v. Talman, has direct application to the facts of this case, as I think, and must be held to be conclusive of it. The plaintiff w'as not bound by the original contract to pay the loan (Wright v. Clapp, 28 Hun, 7), nor was he surety or guarantor of this debt, and, as - appears, he was merely guarantor of the equity of redemption. (See, also, Buckingham v. Corning, 91 N. Y., 525, cited in opinion.)

LaNDON, J.

(dissenting):

Silas B. Ferguson in making tbis loan acted as tbe agent for bis brother, and exacted a bonus or allowance of ten per cent as tbe condition of tbe loan. Tbe mortgage was given for $2,700 and only $2,430 of tbe defendant’s money was ever paid to tbe plaintiff thereon. It is true that tbe defendant knew nothing of tbe transaction at tbe time it took place; that bis agent kept tbe $270 for himself, and sent tbe mortgage by mail to tbe defendant who then resided in Otsego county and charged him $2,700 therefor. Tbis was in 1873. A year later, however, the defendant learned that tbe mortgage, as be expresses it in bis testimony, was bought at a discount. ” He then learned or would have learned if be bad prosecuted tbe inquiry, that he was bolding a mortgage for $2,700 upon which only $2,430 of bis money bad been loaned, and that bis agent bad exacted $270 usury thereon. It was then open to him either to ratify the act of bis agent or to repudiate it. He chose to ratify it by receiving interest for several years upon tbe whole sum and finally b.y seeking to foreclose for tbe whole sum. To restrain such foreclosure tbis action is brought. We think the judgment should be affirmed. Tbe defendant cannot with full knowledge of all the facts appropriate to himself the fruits of bis agents action, without ratifying ,the instrumentalities by which it was accomplished. No case is presented showing that tbe agent made any separate bargain for a bonus for the benefit of himself Tbe transaction was an express exaction of ten per cent, ostensibly for tbe benefit of tbe lender, without pretense that it was for the benefit of the agent, a transaction which the principal in no way has repudiated. In this respect the case differs from Philips v. Mackellar (92 N. Y., 34); Estevez v. Purdy (66 id., 446); Van Wyck v. Waters (81 ib., 352), and other similar cases in which the lender advanced the entire sum for which the security was given, and the agent in some way appropriated part of it to himself. Here the lender did not advance the face of the mortgage. His agent had his funds and could advance for him as much or as little as his thrift in extortion required, and the result in this case was the principal obtained a $2,700 bond and mortgage for $2,430, and he allowed his agent to charge him $250 for his services; thus the> principal took all of the usury, and allowed his agent liberal wages,, not out of it, but because of it. The case seems to be much stronger than Algur v. Gardner (54 N. Y., 360).

It is objected that the plaintiff is not a “ borrower ” within the terms of the statute which allows the borrower to maintain an action to have an usurious security canceled without refunding the amount actually advanced thereon. (1 R. S., 772, § 8; 4 Edm. Stat., 460, § 4.) If we regard simply the form of the transaction, the plaintiff was not the borrower, but if we regard the substance, he was. The courts, in their construction of the word “ borrower,” have held that the man who did not borrow the money did not come within the meaning of the word “ borrower.”

In Vilas v. Jones (1 N. Y., 280), Bronson, J., says : “ There is no solid ground for saying that the word £ borrower5 includes one who did not borrow,” and that view has since prevailed. Conversely, the man who did borrow is included. It seems plain in this case that’the plaintiff was the real borrower, and that the fact should he so found. (Tiedemann v. Ackerman, 16 Hun, 307; S. C., 84 N. Y., 677.)

At the end of a line of fictions the real estate is again vested in him, clouded with this usurious mortgage. The courts have not been inclined to permit any one succeeding to the title of the borrower to come into equity for relief without tendering the amount actually due for the reason that he had a defense at law if sued. This reason is expressly stated in Buckingham v. Corning (91 N. Y., 528) and Allerton v. Belden (49 N. Y., 373). The statute allowing a borrower to ask relief against the usurious contract without tendering the amount due upon it, was among other things intended to protect a mortgagor against a statutory foreclosure. (Livingston v. Harris, 11 Wend., 329.) In such a proceeding he has no remedy at law, and he must come into equity or else lose his land upon an usurious mortgage.

But even if this plaintiff should be held not to be a “ borrower,” the case of Schermerhorn v. Talman (14 N. Y., 93), authorizes the court in this action to grant to the plaintiff relief against this mortgage. This case, like the one cited, was tried upon the merits upon the issues framed by the complaint and answer. In that case the court held that the plaintiff was not a borrower,” but nevertheless awarded him the relief to which he was entitled. Here, we ñnd that the plaintiff is entitled to relief against the entire mortgage, since he must have that relief here, or forever lose it.

The judgment should be affirmed, with costs.

Judgment reversed, new trial granted, costs to abide event.


author: BarNard, P. J. :

text:
    JOHN C. ROBERT and Others, Appellants, v. H. M. SADLER and Others, Respondents.

      hand taken for a highway — right of the commissioners to remove the soil, for the purpose of using it to fin in another portion of the same highway.

    After the report of commissioners, appointed to appraise the damages to he paid to the owners of land to be taken for a public highway, had been duly confirmed by the court, commissioners, duly appointed for that purpose, entered upon the lands and made contracts for the proper grading, filling and opening of the highway. The contractor removed gravel from the land taken from the plaintifEs, above and below the grade line established by the commissioners, which gravel was used by him in filling, grading and constructing the highway as required by his contract in front of the plaintiffs’ premises and elsewhere. Meld, that the plaintiffs could not enjoin him from so doing.
    Appeal from a judgment, entered in favor of tbe defendants against tbe plaintiffs on dismissing tbe complaint on tbe merits.
    Tbe cause was tried before Mr. Justice Cullen, at Special Term, ■and judgment was entered upon bis decision. Tbe action was brought by Jane Robert to enjoin tbe defendants, who claim to be commissioners for grading Eighteenth avenue, in tbe town •of New Utrecht, from digging gravel from that portion of Eighteenth avenue so-called, which lay in front of her farm, and carrying the same away. Jane Robert died while the action was pending, and the action was continued in the names of the present plaintiffs. The land was a part of plaintiffs’ farm, and the defendants claim that it was taken for the purposes of a public highway, pursuant to a certain resolution of the board of supervisors of Kings county, passed May 29, 1884. After the report of the commissioners appointed to appraise damages had been confirmed by the court, commissioners to grade and open the same .were appointed under chapter 670 of 1869. They entered upon the lands and made a contract for the construction of the road with the defendant Curran, by whom the gravel was removed. The pits in question were dug in part below the established grade of the avenue, and the gravel was taken from above and below such grade, and used in grading the avenue in front of plaintiffs’ farm and elsewhere.

      Hubbard <& Bushmore and John D. Pra/y, for the appellants.

      WilUam Sulli/oa/n, for the respondents.
   BarNard, P. J. :

The opening of a road is not completed when a certain and fixed piece of land is taken from the' owner for a highway. It is necessary first to open and work it. This includes so grading the surface of the land as to make the road fit for travel. Hills must be cut down and valleys and swamps filled up. There is no fixed grade beyond such a line as is best adapted to make a good and easy road. This grade may be changed from year to year to meet appropriations of money for improvement. It has always been held in this State that the material and timber within the limits of the road may be used for the making, working and improvement of the road and for making bridges thereon. (Jackson v. Hathaway, 15 Johns., 447.) With the exception of this right, the landowner retains the exclusive right of property. In the case of the Niagara Falls Suspension Bridge Company v. Bachman (4 Lans., 523) it was decided that gravel may be lawfully taken by the highway commissioners and carried from lands opposite one person and used on a pai’t of a highway opposite another owner, for the repair of the road.

The case of Fisher v. The City of Rochester (6 Lans., 225) only decides that a contractor who has used the stone for his own use, and not upon the highway, did not owe the city therefor, in such cases the material belongs to the owner of the land. There is no limit beyond which material may not be taken if needed for the purposes of a road. As already observed, a grade may be changed, and no reason is presented why material below the surface of the road may not be taken to improve the face of the road elsewhere* provided that the excavation is so filled up as to make a good road. The judgment should be affirmed, with costs.

DyKmaN and Pratt, JJ., concurred.

Judgment affirmed, with costs.


author: BarNArd, P. J.:

text:
    MICHAEL COYLE, Respondent, v. HENRY E. PIERREPONT, Jr., and Others, Appellants.

      Negligence — when a dock owner is responsible for the negligence of his engineer working an engine leased, to a stevedore.

    A stevedore was employed by the owners of a vessel to unload it at docks owned by the defendants. The defendants hired to the stevedore a portable engine and boiler, with an engineer to run them, to furnish power to hoist the cargo-from the vessel and lower it upon the dock. The cargo consisted of castor oil packed in wooden boxes weighing about 200 pounds each. Four.boxes were placed in a sling and hoisted and lowered by a rope moved by the engine. The plaintiff, who was employed by the stevedore, was injured by being struck by one of the boxes which fell from the sling. It was claimed by the plaintiff that the engineer lowered one of the packages of boxes too fast, and then stopped it too quickly, thereby causing the accident.

      Held, that the court properly charged that the defendants were .responsible for the negligence of the engineer.

      GerlachY. Edelmeyer (88 ÍT. Y., 645; affirming S. C., 15 J. & 8., 292), followed; Burke v. Be Castro & Bonner Sugar Befining Company (11 Hun, 854), questioned.
    Beargdment of an appeal by the defendants from a judgment, entered upon a verdict recovered by plaintiff at the circuit in Kings county.
    The action was brought to recover damages alleged to have been sustained by the plaintiff by reason of an injury caused by the negligence of an engineer employed by the defendants.
    The plaintiff had a verdict for $500, and from the judgment entered thereupon the defendants appealed to the General Term. After argument in May, 1884, the judgment was reversed and a new trial granted in September following, Mr. Justice Dr km an writing the opinion. (Reported 33 Iiun, 311.) At the General Term in December, 1884, a motion for a reargument was made by plaintiff. The motion was granted in February and the reargument directed at the next General Tenm

      Thomas 8. Moore, for the appellants.

      Thomas B. Bell, for the respondent.
   BarNArd, P. J.:

The question in this case is whether the plaintiff was injured by the negligence of the defendants’ servant. The defendants own docks in Brooklyn. One Michael Gillen, a stevedore, was employed by the owners of a vessel to unload her at these docks. The cargo consisted of castor oil packed in wooden boxes weighing each box about two hundred pounds. The defendants hired to Gillen a portable engine and boiler, with the engineer to run the same, to furnish the power to hoist from the vessel and lower upon the dock the cargo. The plaintiff was an employee of the stevedore. The engineer had the' exclusive charge of the. engine. Four boxes were packed in a sling. The engineer lowered one of the packages too fast and stopped it too quickly. The package was thereby broken apart and the plaintiff was injured. The court charged the jury that the defendants were responsible for the negligence of the engineer.; that in respect thereto the defendants were the masters of the engineer. This was the correct rule. "Whatever question could be made upon the authority of the case of Burke v. De Castro, etc., Sugar Refining Company (11 Hun, 354), is answered by the case of Gerlach v. Edelmeyer. The case was tried in the Superior Court of New York. The defendants in the case had contracted with two builders to furnish a boiler and engine with engineer to raise the material for building. The rope broke and killed the plaintiff’s intestate. The judge charged the jury that the defendants wore liable as the masters of the engineer for his negligence. The Court of Appeals affirmed the judgment. • This affirmance was subsequent to the decision in the case of Burke v. Be Castro, etc., Sugar Refining Company, and although the Court of Appeals gave no opinion upon the affirmance, the opinion of the General Term of the Supreme Court distinctly upheld the charge to the jury. The Court of Appeals must have intended to sustain this opinion. If the defendants were responsible for the negligence of the engineer the other questions were settled by the jury. The plaintiff was properly on the dock. He was guilty of no negligence which contributed to the injury. The accident twas not caused by an improper method adopted by che stevedore to do the -frork. The plaintiff was injured to the extent of the verdict. All these things are found as well as the negligence of the engineer.

The judgment should, therefore, be affirmed, with costs.

PRAtt, J., concurred; Dykman, J., dissented.

Judgment affirmed, with costs.

      88 N. Y., 045, and 15 J. & S., 292. —[Rep.


text:
    ANNA MARIA HOWELL and Others, Respondents, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Conditional conveyance of land — what will not he treated as a substantial compliance with the condition — when a sum named as damages will be treated as such and not as a penalty.

    The plaintiffs’ predecessors in title conveyed a portion of a large tract of land on Long Island owned by them to the railroad company, defendant herein, to he used as the site of a passenger station. The deed was given upon the express condition that the premises should revert in case the defendant should cease to use them as a regular passenger station as therein provided. It also contained a covenant binding the company, its successors and assigns, to erect, within a reasonable time, a respectable station on the land conveyed, and to forever keep and maintain the same as a regular daily stopping place for not less than two trains daily in each direction, “under the penalty of $8,500, which is hereby agreed between the parties as the liquidated damages for the substantial non-performance of this covenant.”
    The defendant erected the depot and then stopped its trains which ran from Long Island Oity to Greenpoint as required by the deed until 1876. At that time it leased a road running from Long Island City to Whitestone, which ran through or near the plaintiffs’ lands, and upon which was a station, distant about 1,000 feet from the one built upon the land conveyed to the defendant. At this station the trains were stopped from fourteen to nineteen times a day. After acquiring this lease the defendant ceased to stop its trains at the old station.

      In an action, brought by tbe plaintifE to recover tbe possession of tbe land con- ■ veyed because of tbe failure of tbe defendant to comply with tbe terms of tbe conditions, and also to recover damages for tbe breach thereof:

      Seld, that tbe stopping of tbe trains at tbe station upon tbe leased road was not a substantial compliance with tbe terms of tbe conditions contained in tbe deed from the plaintiffs.
    That tbe sum of $3,500 specified in the covenant was to be treated as liquidated damages and not as a penalty.
    Appeal by tbe defendant from so much of a judgment in favor of the plaintiffs as awards damages to the plaintiffs. The judgment was entered upon the report of a referee.
    The action was brought: 1st. To recover certain premises upon the ground that there had been a breach of the condition contained in a deed of conveyance thereof from the plaintiffs to the defendant ; and, 2d, to recover damages upon an alleged breach of a covenant in the same deed.
    For many years prior to 1860 the plaintiffs’ predecessors in title were owners of a large tract of land in the town of New-town, county of Queens. In that year, the defendant being about to construct a railroad from Jamaica to Hunter’s Point, through this property, purchased of plaintiffs’ predecessors a small plot of land, containing about one-quarter of an acre for depot purposes. The deed was conditioned that the premises should revert, if not used for depot purposes, and also contained the following covenant: “ And the said parties of the second part, for themselves, their successors and assigns, do hereby covenant that they will erect, within a reasonable time, at a cost of not less than $500, a respectable station-house on the lot of land hereby conveyed, and forever keep and maintain the same as a regular daily stopping place (Sundays excepted) for not less than two trains daily in each direction, under the penalty of $3,500, which is hereby agreed between the parties as the liquidated damages for the substantial non-performance of this covenant.”
    Shortly thereafter the defendant built its road, constructed the depot and proceeded to operate its railroad. No claim is made of any breach of this covenant until the year 1876.
    In or about the year 1869 the Flushing and North Side Railroad Company built a railroad from Hunter’s Point to Flushing, College Point and Whitestone, running parallel with defendant’s road from Hunter’s Point through plaintiffs’ property at Woodside, and established its depot at Woodside, about 1;000 feet, distant from the ■defendant’s depot, which was on plaintiffs’ southerly boundary line. In 1876 defendant leased the Flushing and North Side Railroad, and thereupon discontinued the stoppage of trains at its old depot, but operated its trains, varying from fourteen to nineteen trains daily each way, over the other road stopping at the other Wood7 ■side station.
    The referee found that defendant’s failure to maintain the original depot was a substantial non-performance of its covenant, ■and that plaintiffs had been damaged thereby in the sum of $3,500 for which sum he gave judgment. „

      JEckoard JE. Sjorague, for the appellant.

      J. Ralph Burnett, for the respondents.
   BarNArd, P. J.:

■The question of the substantial performance of the contract in question depends upon two things. The plaintiffs’ predecessors in title owned a large tract of land about three miles from Hunter’s Point, upon the Long Island Raih-oad. ■ There was a station a mile ■away, at Whinfield. To obtain daily facilities to get to and from this land, a deed was given to the Long Island Railroad Company, and the company accepted the deed with the condition that there should be a passenger station built on the lot, and that at least two trains each way should daily stop thereat for passengers, and that if the company failed to maintain the station the land should revert, and this was “ under the penalty of three thousand five hundred dollars, which is hereby agreed between the parties as the liquidated damages for the substantial non-performance of this contract.” Under this deed the defendant took possession of the land, and built the passenger depot and literally fulfilled the contract for a time, and then ceased to do so. The defendant’s road extends from Long Island City to Greenpoint, on Long Island sound, in Suffolk county, with numerous and extensive lateral connections. Among other roads operated by it was the Flushing and Woodside Railroad, which extended from Long Island City to White Stone. This road runs through or near the lands of the plaintiffs, and had a station about 1,000 feet from the old station. The defendant ceased to stop at the old station on its road and stopped its trains at the other station on the leased road, and a far greater number of trains daily than was called for by the contract with the plaintiff. Is the station not upon the land, but so near that it fairly, accommodates all persons who do or can live upon the plaintiffs’ land a substantial performance of the covenant while kept as it is? Is such maintenance of a station under the circumstances of this case a substantial performance of the covenant with the plaintiffs, even if the station does equally well accommodate passengers to and from New York?

The answer to each question should be- adverse to the defendant.. The covenant applied t^¡ the plaintiffs’ land and can be performed in no other place fully. The defendant’s road, with which the contract was made, was a road of very much greater scope and significance than the short road. To go from the new station by this road east, the traveler must first go to Hunter’s Point, a distance of three miles, and then again start by the defendant’s road. There is some proof in the case that the old station is for the special advantage of the plaintiffs’ lands as against the new station. The parties had the right to contract to suit themselves, and a court should give proper weight to that fact. Finally, the defendant is not bound to the plaintiff to keep even the new station at all for any given time. It is for its interest to do so at present, but it may move it or discontinue it. A covenant with the plaintiff is not answered by a performance in another place and with no guaranty of continuance. It seems to me, therefore, that there is not only no substantial performance but a complete non-performance as to this covenant. The case does not fall within the cases cited. Generally, these cases arise in actions upon contracts for building and like contracts. If the performance is substantial and the defect can be made good with money, the action is upheld and justice done by compensation for defects. (Heckmann v. Pinkney, 81 N. Y., 211; Woodward v. Fuller, 80 id., 312, and Nolan v. Whitney, 88 id., 648, are such cases.) If this covenant had fallen short in size or cost of station or m time of construction, it might have presented a case to be tried as substantially performed. The land is surrendered and all liability to keep a station on it is abandoned.

Upon the question of whether the covenant was one for a penalty or was designed to liquidate the damages, this is the difficulty experienced in all cases of this hind. The use of the word penalty does not necessarily make it a penalty, and the use of the words liquidated damages does not conclusively establish that it was not a penalty created by the covenant. In this case, both words are used, and the case must be determined by the surroundings of the contract and by the evidence. The failure which constituted the basis of damages was single, and actual damage would be hard to prove. The Court of Appeals give weight to this consideration in Little v. Banks (85 N. Y., 258). Under this case, I think this covenant was intended to, and did, make a sum which was to be deemed the actual damage for a breach. The proof, hyp we ver, fully supports the finding that damage was actually suffered in excess of the sum named in the covenant. The plaintiffs’ lands are shown to have depreciated nearly or quite half in value, by reason of the removal of the station. While this is disputed by the defendant’s witnesses, there is no reason why an appellate court should disagree with the finding.

J udgment affirmed, with costs.

DyKmaN and Pratt, JJ., concurred.

Part of judgment appealed from affirmed, with costs.


author: BaeNAed, P. J.:

text:
    ALBRECHT J. LERCHE, Appellant, v. WILLIAM M. BRASHER, as Administrator, etc., of PIERRE M. VAN WYCK, Deceased, Respondent.

      jEvidence - - when an agent cannot testify as to services rendered to a deceased, principal or the non-payment therefor— Code of Oivil Procedure, sea. 829 — counter-claim,— [when it grows out of the plaintiff’s cause of action — Oode of Oivil Procedure, sea. 501.
    This action was brought to recover for services rendered by the plaintiff, as attorney and agent, to the defendant’s intestate. Upon the trial a certified copy of a power of attorney, from the deceased to the plaintiff, was received in evidence, together with other proof tending to show that the plaintiff had been employed by the deceased. The plaintiff was then allowed, against the defendant’s objection and exception, to testify as to services rendered by him under the employment, and as to their value.

      Reid, error; that such testimony was excluded by section 829 of the Code of Civil Procedure.

      That it was also error to allow the plaintiff to testify that his claim had not been paid.
    The defendant set up as a counter-claim that the plaintiff became possessed of certain personal property of the intestate after his death, and transferred the same, with intent to defraud the estate, thereby causing great damage to it.

      Held, that if the plaintiff, after his principal’s death, transferred (dating hack the instrument of transfer to a time when the deceased was living) the property obtained under the employment, the counter-claim grew out of the same transaction as that set forth in the complaint as the foundation of the plaintiff’s claim, and was therefore properly pleaded herein.
    Appeal by tbe plaintiff from an order setting aside a verdict of $750 in his favor, and granting a new trial on the defendant’s motion, made at the close of the trial upon the exceptions.
    The action was brought by the plaintiff to recover $2,675 for services rendered Pierre hi. Yan ’W'yck in his lifetime. The employment, services and value were put in issue. The answer also set up a counter-claim on the ground substantially, as alleged, that after the death of Yan Wyck the plaintiff became wrongfully possessed of two certain mortgages, which he thereafter wrongfully and fraudulently transferred, and that in*order to recover their possession the defendant was obliged to pay the sum of $2,000 as attorney and counsel fees in an action brought by Judah B. Yoorhies, as collector of the estate, against the person to whom such transfer was made. This was denied by the reply.

      G. A. Clement, for the appellant.

      Morris <& Pearsall, for the respondent.
   BaeNAed, P. J.:

The new trial was properly granted. The claim was for services rendered Pierre M. Yan Wyck, deceased, by the plaintiff as his attorney and agent. The denial is complete upon the part of the administrator. Upon the trial the plaintiff presented himself as a witness in his own behalf. There was given in evidence a certified copy power of attorney from the deceased to the plaintiff. taken from the records of the city and county of New York. There was other proof given tending to show an employment of the plaintiff made by the deceased in his lifetime. The plaintiff, under objection, was permitted to testify to the services done under this employment and to tbe value of snob services. Tbe court charged tbe jury in respect to section 829 of tbe Code, wbicb forbids tbe reception ■of evidence of a party to a transaction wben the opposite party to it is dead, as follows : Now, tbe statute to, wbicb I have referred -dues not, in my opinion, prohibit a man, after bis employment has been shown by other evidence, from testifying of tbe services wbicb be has performed.”

We think that section 829 of tbe Code does not peimit this evidence. Assuming a general employment as of attorney and client, it is not permitted that an attorney shall build up tbe claim by bis own evidence of what was done by him under tbe employment. Every item of an account so made up is a transaction with tbe deceased, because it needs an employment and services to make tbe claim. The section in question gives no real protection to estates of deceased persons if so read. Tbe party benefited makes tbe claim and establishes its value by bis own oath. (Fisher v. Verplanck, 17 Hun, 150.) It was also erroneous to permit tbe question to be answered by plaintiff that tbe claim bad not been paid. (Howell v. Van Siclen, 6 Hun, 115; affirmed, Court of Appeals, 70 N. Y., 595.)

Tbe question of the- counter-claim is not free from doubt. Tbe .answer charges that tbe plaintiff became possessed of certain personal property of tbe deceased after bis death, and, to defraud the estate, transferred tbe same, thereby causing great damage to tbe •estate. If this bad been done in tbe lifetime of deceased it would be tbe right of tbe administrator to seek redress by way of eounter-•claim. The injury was done after death, but it must be either wholly remediless or tbe executor or administrator must sue for redress. If tbe cause of action belong to the administrator or •executor, in bis representative capacity, be must sue in that capacity. (Code, § 1814.) If be can sue as administrator be can set up a counter-claim in an action brought against him in his representative •capacity, unless be is prevented by tbe principle that a tort cannot be set off against a contract. Even that can be done wben tbe cause of action for tort grew out of some transaction or is connected with tbe subject of the plaintiff’s action. (Code, § 501.) This depends whether tbe cause of action on tbe plaintiff’s part ended with tbe life of tbe deceased within tbe meaning of this section. It seems to me it does not. Assuming that the plaintiff, under an employment by deceased, obtained possession of the property, and by virtue of a power of attorney from deceased dated an assignment back to a time when the deceased was living, then this was a transaction growing out of the employment, although done after the death of the client.

The order granting a new trial should be affirmed, with costs.

DyeMAN, J., concurred.

Order granting new trial affirmed, with costs.


author: Barnard, P. J.:

text:
    JAMES T. LANE, Respondent, v. ROSWELL C. WILLIAMS and Others, Appellants.

      Bill of pa/rticulars — when not allowed in an action for malicious prosecution.

    In an action to recover damages for a malicious prosecution the defendants were-charged with having used a debt which they held, to procure an attachment against the plaintiff, whereby his credit and business were injured. The-defendants applied for a bill of particulars “ of the persons who refused to-give him (the plaintiff) credit, as alleged in the amended complaint; the amount of credit refused; the damages sustained by each of said refusals; the time when such credit was refused,” and also the name of each person who stopped dealing with the plaintiff, and the amount of credit lost by each person.

      Held, that the application was properly denied.
    Appeal from an order, made at a Special Term, denying a motion to compel the plaintiff to furnish the defendants with a bill of particulars.

      JBcmks <& Henderson, for the appellants.

      Marbm J. Keogh, for the respondent.
   Barnard, P. J.:

This is an action to recover damages for an alleged malicious prosecution. The defendants are charged with maliciously using a debt which they held against the plaintiff to procure an attachment whereby plaintiff’s credit and business was injured. The defendants apply for a bill of particular's “of the person who refused to give him credit, as alleged in the said amended complaint; the-amount of credit refused; the damages sustained by each of said refusals; the time when such credit was refused,” and also the “ name of each person who stopped dealing with the plaintiff,” and the amount of custom lost by each person. The application was properly denied. The action does not depend upon proof of these particulars. The basis of it is malice and lack of probable ■cause to sue out the attachment. Loss of business, which is incident to the same, is a proper averment, if damage and proof thereof is admissible on the trial. It does not thereby become the subject of a bill of particulars. As well order a bill of particulars of the good and worthy citizens in a slander action, who respected the plaintiff before the slander and of those who did not so esteem him after the alleged publication. An averment of loss of character and business is a common result of malicious acts, and, therefore, may be charged as the result in fact in the plaintiff’s pleading. Such an averment may be sustained by proof of the malicious act, without proof of specific instances. In the present case the defendants have a very full examination of the plaintiff upon the subject of loss of custom and credit, and the bill of particulars is practically unnecessary, if otherwise proper.

The order should be affirmed, with costs and disbursements.

Peatt, J., concurred; DykmaN, J., not sitting.

Order affirmed, with costs and disbursements.


author: BaRNaed, P. J.:

text:
    MARGARET CLARK, Appellant, v. A. S. BARNES and Others, Respondents.

      Negligence — what acts of the employer do not constitute negligence as to a servant.
    The plaintiff was employed by the defendants to feed one of several presses which were operated by different persons. There had been a drip from the machinery of oil and water so that the floor had, as was claimed, become slippery. The plaintiff slipped, fell against the uncovered cogs of an adjoining press and was injured. The proof showed that the defendants’ business was carried on in an ordinary printing office with the usual method of collecting drip. '

      Held, that the defendants were not guilty of negligence in allowing the floor to become slippery, or in leaving the cogs uncovered.

      Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint at circuit upon the close of the evidence.
    The action was brought to recover damages for personal injuries alleged to have been received through the negligence of defendants, plaintiff’s employers. The testimony of the plaintiff tended to show that she was employed to feed a press; that as she stepped down from her press she slipped on the floor and fell down, thrust ing her left hand against the cogs of another press and sustained the-injuries complained of.

      M. L. Towns, for the appellant.

      Stephen B. Jacobs, for the respondents.
   BaRNaed, P. J.:

The right of the plaintiff to recover depends upon the condition: of the floor or of the cover to the cogs of the machine by which she was hurt.

The defendants have a printing establishment. One of the presses was fed by the plaintiff. She fell while at her employment to the floor and her hand was injured by the cogs of another press. As to the question whether these cogs were covered or not at the time of the accident it is not important. The master was not bound to provide the machinery so as to guard against an accident occasioned by a cause such as is claimed to have caused this one. If the slippery floor caused the fall and the master is liable for this, he would be liable for the injury however caused. If the fall was not occasioned by an act or omission for which he is answerable, he would not be liable because the cogs of the machine,- which in fact did the injury, were uncovered. There was no proof mating the master liable for the accident if it was as claimed by the plaintiff.

There was a printing office with presses properly arranged. They were fed by different persons and among them one was fed by the plaintiff. There had been a drip from the machinery of water and oil so that the floor became slippery and the plaintiff fell. She had known of this drip and the employment was subject to risks known to her. The machinery, its arrangement and its management were things which the master had a right to choose, subject only to the requirement that it be safe and in a safe place. Theso words do not include incidents like the drip from machinery known to the employees making the floor slippery to the extent claimed in this case. The proof shows an ordinary printing office with the usual method of collecting drip. There was no omission of proper appliances which were ordinarily used in similar offices to prevent danger. (Crocheron v. North Shore S.I. Ferry Co., 56 N. Y., 656; Loftus v. Union Ferry Co., 84 N. Y., 455; Dougan v. Champlain Transportation Co., 56 N. Y., 1.)

Upon the question of fact itself the case seems to repel the plaintiff’s theory. The floor was not slippery and the cause of the accident must be looked for elsewhere than from a slippery floor. When the proof leaves it doubtful whether the injury was occasioned by negligence the case is not made out.

The judgment should be affirmed, with costs.

DyKMAN and Peatt, JJ., concurred.

Judgment dismissing complaint affirmed, with costs.