text:
    William A. Godfrey, App’lt, v. Kings County et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Counties—Liabilities.
    A county is not liable for injuries to a tug, caused by a collision with a drawbridge, in consequence of the negligence of the bridge tender.
    Appeal from"a judgment, dismissing the complaint.

      Stewart & Macklin, for app’lt; George F. Elliott, for resp’t, Kings county; Francis II. Van Vechten, for resp’t, Queens county.
   Dykman, J.

This is an appeal by the plaintiff from a judgment entered in favor of the defendant, against him, dismissing his complaint, with costs. The action was for the recovery of damages to a steam tug, sustained by reason of a collision with the bridge across the Newtown creelc. On the day of the injury the steam tug of the plaintiff entered Newtown creek from the East river, and gave the usual signal to indicate to those in charge of the bridge that she desired to pass through the draw. The persons ih charge of the bridge commenced to open it, but, as the tug approached it came in collision with the end of the draw, and received the injury for which this action is brought. When the case came on for trial at the circuit before a jury, the complaint was dismissed, and judgment ordered in favor of the defendants upon the pleadings. It has long since been settled law in this state that county officers are not the agents of the county, and the immunity of counties from liability for damages arising from neglect misfeasance, malfeasance or tort of its officers has long been established. It required a special statute to impose liability upon the towns of this state for the neglect of the commissioners of highways in keeping roads and bridges therein in suitable order and repair for public travel, and there has never been any statute of that character imposing liabilities upon counties for the negligence of their officers. The freedom of a county from liability for damages arising from the negligence of its officers is analogous to the exemption that existed in favor of towns previous to the special statute making them liable for the neglect of highway commissioners. The common law gives no such action. We find no authority to sustain the plaintiff in his theory of this suit, and we find no decision in favor of an action of this kind against a county or town unless the right of action was expressly given by statute. It has ever been the doctrine that towns and counties are political divisions of the state, and instrumentalities of government,, and are not liable for the acts of its officers. The principle of respondeat superior has no application, because the relation of master and servant does not exist. A sheriff is a county officer, but his county is in no way responsible for his acts. Supervisors, though elected by the towns, are for some purposes deemed county officers, yet neither the towns nor the counties are liable for their negligence or their torts. The new statute declaring counties to be municipal corporations imposes new liability upon them. Under that law a county can only be sued upon a cause of action “for which it is liable,” and that clause relates to the time when the statute became a law. No new liability was created. Moreover, the question involved in the appeal was decided adversely 0to the appellant by this court in the case of Albrecht, against these same defendants, and we adhere to the decision made in that case.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Jeremiah Mead, App’lt, v. National Bank of Pawling, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Bills and Notes—Agreement not to enforce.
    Where a promissory note is given for a proper consideration, an agreement that it shall not be collected or its payment enforced, is entirely nugatory, and an action upon it when it becomes due may be maintained, notwithstanding such promise.
    Appeal from a judgment entered on a verdict directed by the court in favor of the defendant.

      A. M. & G. Card, for app’lt; William Downing, for resp’t.
   Dykman, J.

J.— This is an action brought by the plaintiff against the bank for the recovery of a balance alleged to be due the plaintiff from the defendant. The plaintiff, in his complaint, alleged that between the first day of October, 1891, and the commencement of this action he had deposited with the defendant various sums of money amounting in the aggregate to $42,106.46, and that he withdrew from the defendant the sum of $38,745, and demanded judgment for the balance,—$8,361.46. The defendant, in its answer, alleged that between the dates mentioned in the complaint the plaintiff deposited with the defendant divers sums of money, amounting in all to $74,289.03, which sum includes all the items mentioned in plaintiff’s complaint, except the deposit of $800 alleged to have been made on June 1, 1893. That' deposit was denied by the defendant, and the plaintiff did not prove it, or attempt to do so, on the trial. The defendant further alleged in its answer that the plaintiff, by his checks and orders, drew from the defendant, out of his deposits, the sum of $74,197.54 between the dates mentioned in the complaint, leaving a balance on deposit to his credit of only $91.49. The defendant also set up a counterclaim in its answer against the plaintiff amounting to the sum of $3,435.76, with interest. That claim was not denied by the plaintiff, and it was admitted upon the trial. The real controversy upon the trial had relation to certain notes which had been given by the plaintiff to the bank. It was his theory and his testimony that the cashier and the teller of the bank requested him to permit them to use his name in stock speculations, and stated that they desired his name on notes which would be discounted by the bank for that for the reason that their names-ought not to appear in that way by reason of their official relations with the bank; and that they agreed that the bank would take care of the notes as they became due. It was also his claim that none of the transactions connected with these stock speculations were to affect his account with the bank, but that they were matters entirely between the defendant and its cashier and teller; that he should not be charged with any of the notes given or discounted, nor should he be credited with anything received on the sale of the stock. The difference between the parties is the amount charged and credited to the plaintiff in these stock speculations. The cause came on for trial at the circuit before a jury, and at the close of the plaintiff’s case the court directed a verdict in favor of the defendant for $3,419.86, to which the plaintiff excepted. ' The plaintiff also asked to go to the jury upon certain questions of fact, which the court denied.

The plaintiff, upon the trial, admitted all the items on the debit and credit side of his account with the bank to be correct, and his counsel stated in an affidavit read upon the opening of the trial that the items of the defendant’s accounts and the dates were not disputed, but claimed and insisted that the only question to be tried was whether the items were chargeable to or properly credited to the plaintiff. Such an admission seemed to eliminate every other question from the case, and it devolved, therefore, upon the plaintiff to show why it was not proper for the defendant to credit him with the amount which appeared to his credit on the account, and also to show why he should not be charged with his checks, notes and orders, all of which were admitted by him to be correct, and which were the only charges against him in his account. The plaintiff was a witness in his own behalf upon the trial, and he admitted the genuineness of all the notes, checks, drafts and orders with which he was charged in the account. His theory was that he was not liable upon notes given by him and discounted by the bank, because he claimed that the proceeds of the notes were to be used by the cashier and the teller to purchase and speculate in stocks; and the checks and orders given by him, upon which the bank paid the money, were void for the same reason. In support of this theory he testified as follows:

“ In the fall of 1891, I had a conversation with Mr. Haight with reference to stocks. Mr. Haight asked me for my name. He said he wanted to speculate in stocks, and they would take care of me ; the bank would take care of me. (Haight was the teller.) He said his name could not appear in the bank, and wanted to use my name. I signed the note at that time. I think it was for about $6,200. (The cashier of the bank was Mr. Chase.)”

The plaintiff further testified as follows: ,

“Mr. Chase asked meta sign that note. This conversation was on the street. This conversation was about the same as I had with Mr. Haight. The next conversation that I recollect of, Mr. Chase sent me to Danbury with an $8,400 note. By the court: Signed by you? Your note, was it? A. Yes, sir.”

That testimony was denied by the cashier. The question of fact thus raised was quite immaterial upon the trial of this action. Conceding his testimony to be true, and that he expected the officers of the bank to take care of his notes as they became due; and that they were given for the purpose of raising money, as he states, yet that was no defense for him against the notes in the hands of the bank. Having made the paper, he was under obligation to pay it. In any case where a promissory note is given for a proper consideration, an agreement that it shall not be collected, or its payment shall not be enforced, is entirely nugatory, and an action may be maintained upon it when it becomes due, notwithstanding such promise. That principle is sufficient to defeat the plaintiff in his contention in this case, and the verdict was properly directed by the trial court.

Judgment should be affirmed, .with costs.


text:
    James H. Birdsall, Resp’t, v. Harry F. Emmons et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Attachment—Affidavit.
    The affidavit, upon which the attachment was granted in this case, was held sufficient to set forth a complete cause of action upon an expressed and implied contract, and a breach thereof on the part of the defendant.
    Appeal from an order delating a motion to vacate an attachment.
    The affidavit filed in support of the motion for an attachment is as follows:
    James H. Birdsall, being duly sworn, says that he is the plaintiff in this action; that a summons has been issued therein; that this action is to recover a sum of money only, as damages, for the cause hereafter stated, by the above-named plaintiff against the above-named defendants. Deponent further says that a cause of action exists in favor of said plaintiff against said defendants, for which said action is commenced, or is about to be, and that the amount of the plaintiff’s claim in said action is, and plaintiff is entitled to recover thereon, the sum of three hundred and fifty-eight dollars and forty-three cents, and interest from the - 18th day of April, 189-4, over and above all counterclaims known to plaintiff; and that the grounds of said claim and cause of action are that between the 26th day of February and the 18th day of April, 1894 (both inclusive), the above-named plaintiff purchased from the above-named defendants, who then were, and still 'are, copartners engaged in business at the city of Detroit, Michigan, under the firm name of H. E. Emmons & Co., goods and merchandise, consisting of hay, of the value of $2,979.82, which said merchandise was sold and delivered to plaintiff, at the city of Hewburgli, and various other places in the state of Hew York; that plaintiff made advances to defendants upon said merchandise so purchased by him from defendants as aforesaid, and also paid certain freight, commissions and other necessary charges against and upon said merchandise, amounting to the aggregate sum of $3,438.25, making the amount overpaid to said defendants $458.43, and by reason of the foregoing overpayments the said defendants became indebted to this plaintiff in the sum of $458.43, and that no part thereof has been paid, except the sum of $100, and there is now actually due and payable upon said demand, from the defendants to the plaintiff, the sum of $358.43 over and above all counterclaims known to plaintiff, this deponent; that plaintiff has demandéd the sum so due and owing from the defendants, but defendants have refused and neglected, and still refuse and neglect, to repay plaintiff the sum so overpaid to defendants, and now due and owing to plaintiff, or any part thereof; that the plaintiff is a resident of the city of Newburgh, in the county of Orange, and state of New York ; that the defendants are not, nor is either of them, a resident of this state, but that said defendants, and both of them, are nonresidents of the state of New York, and that defendants, and both of them, reside at the city of Detroit, in the state of Michigan, as plaintiff is informed by numerous written admissions and statements made by said defendants to plaintiff, and that defendants, are now engaged in business at Detroit, Michigan, under the firm name or style of H. E. Emmons & Co.; that the defendants have property within this state, to wit, about 900 bushels of oats at Highland Mills, Orange county, New York, which said property is, as deponent is informed and believes, of the net value of about $270; that the plaintiff is entitled to recover the sum above stated, over and above all counterclaims known to the plaintiff.
    The plaintiff therefore hereby applies for a warrant of attachment against the property of said defendants, according to the Code of Procedure, as a security for the'satisfaction of such judgment as the plaintiff may obtain against the defendants in this action.

      A. J. Skinner, for app’lt; C. L. Waring, for resp’t.
   Dykman, J.

This is an appeal from an order made at the special term, denying a motion to vacate an against property of the defendants, who were nonresidents, on the ground that the affidavit upon which the attachment was issued failed to state facts sufficient to constitute a cause of action. The attachment was issued on the 5th day of February, 1895, and on February 18, 1895, the property attached was sold, by order of the court, as perishable property. The defendants have not appeared or answered, and judgment in favor of the plaintiff has been duly entered in Orange county. An order to show cause why the attachment should not be vacated was made returnable on the 16th day of April, 1895, and the motion to vacate the attachment was made on that day, and denied, with costs. The motion to vacate the attachment was based on the contents of the affidavit of the plaintiff upon which the attachment was based, and no counter affidavits were used. In our view, the affidavit upon which the attachment was granted is sufficient, and sets forth a complete cause of action upon an expressed and implied contract, and a breach thereof on the part of the defendant. The order should be affirmed, with costs.


text:
    In the Matter of the Judicial Settlement of John H. Smith, as Executor of John T. Smith, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Surrogate—Decree.
    The decree of a surrogate may be modified by his successor in office.
    Appeal from a decree, resettling and amending a former decree.

      George A. Wyre, for app’lt; Garrett Z. Snider-, for resp’t, John H. Smith; Abram A. Demarest, for resp’t, Charles T. Smith and the special guardian.
   Dykman, J.

This proceeding was instituted in the surrogate’s court of the county of Rockland by John H. Smith, one of the executors of the estate of John T. Smith, deceased, for an accounting of his proceedings as such executor, based upon a petition filed in the surrogate’s court on the 26th day of June, 1891, before George W. Weiant, then surrogate of Rockland county. All the parties interested were duly cited. Testimony was introduced and taken before surrogate Weiant, and before anything further was done he became ill, and William McCauley, district attorney of Rockland county, became acting surrogate; and a few days before the close of his office as district attorney he signed a decree in this proceeding. A. S. Tompkins, who had been counsel for the executor, then became surrogate; and a motion was made before him to set aside or resettle the decree of Disk Atty. McCauley, on the ground that it did not conform to the facts as disclosed by the testimony. That motion was certified to Frank Comesky, then district attorney of Rockland county, by reason of the disability of Tompkins, on account of his connection with tue case as counsel. Comesky vacated the previous decree, and signed a decree in conformity to the findings previously made by him, and from that decree the present appeal was taken. The last decree allows the executor several payments which he had made which were disallowed by the first decree. In other respects, the two decrees are practically the same. The disbursements allowed to the executor were all actually made, and there is no sufficient reason why they should not be allowed. The largest claim is the sum paid to the widow for her right of dower, but the executors charge themselves with the whole sum received for the real property sold, and as they were obliged to pay the widow, who had a right of dower in the premises, it follows that the sum so paid to her must be deducted from the amount they received. The power to open and modify the first decree is expressly conferred by section 2481 of the Code of Civil Procedure. The decree should be affirmed, with costs to the respondents, to be paid from the estate.

All concur.


author: Per Curiam. Dykman, J.

text:
    In the Matter of Alfred C. Chapin, as Mayor, etc., et al.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Eminent domain—Award—Commissioners.
    In proceedings to condemn land under chap. 583 of 1888, the report may be sent back to commissioners after confirmation, in order to apportion the award among the joint landowners.
    Proceeding by Alfred 0. Chapin, mayor bf the city of Brooklyn, and others, acting as a commission under and in pursuance of the provisions of Laws 1888, chap. 583 (Brooklyn City Charter), tit. 12, section 12, as amended by Laws 1891, chap. 245, to ascertain and appraise the amount of damages, if any, due on any property or interest by reason of the erection of the public hospitals in the town of Flatbush. After the report of the commissioners had been affirmed, an order was granted on the petition of Thomas Bulmer appointing a new commissioner in the place of one who_had died,_ and directing the commissioners to apportion an award made by them between joint owners of a certain parcel of land. The commissioners appeal.

      Albert G. McDonald, Corp. Counsel, for app’lts ; JohnH. Kemble, for resp’t.
   Per Curiam.

Order affirmed, with costs.

Dykman, J.

J. (dissenting).—The facts involved in this appeal are these : On the 22d day of May, 1891, three commissioners were appointed to ascertain and appraise the amount of damage done to any property or interest by reason of the erection of the public hospitals in the town of Flatbush. The commissioners qualified and entered upon the discharge of their duties, and on the22d day of May, 1893, made their report to the court, to which some exceptions were filed ; and on the 11th of November, 1893, such report was confirmed by the court. It appears from the petition in this proceeding that Thomas Bulmer is the owner of certain lands- and premises designated on the commissioners’ map as lots 17 and 18 in block 14. The commissioners of appraisal reported that, they had ascertained and appraised the amount of damage to such lots, taken together, at the sum of $600; and their award was made to the petitioner and owner A. D. Wood as joint owners of such lots. It further appears that some of the awards so made by the commissioners have been paid, and that George G. Herman,, one of such commissioners, is now dead. Upon that petition an order was made appointing Charles Hi Otis a commissioner in this proceeding, in the place of George G. Herman, deceased, and that Otis, in connection with the other two commissioners, met and apportioned the awards between the respective owners of lots Nos. 17’ and 18 in block 14. There are other provisions in the order, which do not require recitation here. From that order the mayor has appealed; and we find it to be erroneous.

The act under which the proceedings were instituted provided, among other things, that the report of the commissioners “be presented to the supreme court, at special term thereof on any day upon notice published in the corporation papers for ten days successively, and that said report be presented to said court for confirmation. The said court shall hear any objections to said report, or any part thereof, and may either confirm the same, or send it back to the commissioners of estimate, who shall thereupon reconsider the same, and again report the result to the said court, and the said report shall again be presented to said court for confirmation upon a similar notice as heretofore provided for. Said court shall again hear objections, and may confirm the same or send the same back as before provided. If the said report is confirmed, said confirmation shall be final and conclusive, but the same shall be sent back and reconsidered as often as said court may deem necessary.” Laws 1891, § 12, p. 461.

There is no authority or jurisdiction in the court other than such as is found in the statute itself, and the proceedings must be governed by the statute by which it was authorized. When the report of the commissioners was confirmed, such confirmation was final and conclusive. The liabilities of the city became fixed and determined definitely and finally. The statute authorized a special proceeding which should be complete and independent, subject to no judicial review. The following authorities justify this conclusion: Railroad Co. v. Marvin, 11 N. Y. 276; In re Commissioners of Central Park, 50 id. 497; In re Canal Street, 12 id. 406; King v. Mayor, 86 id. 182; Mayor, etc. v. Erben, 38 id. 305. Upon the confirmation of the report, the powers of the commissioners terminated, and their occupation was gone. They had discharged the functions of their office and exhausted their power. People v. Mott, 2 Hun, 672; 60 N. Y. 649. This rule should be applied with more rigor in this case because one of the commissioners died after he signed the report.

Again, no application by the petitioner for the appointment of a commissioner under this statute was authorized. Such application could only be made by the mayor and the two commissioners, who were clothed with that power by the statute. Moreover, the order confirming the report was a bar to the new proceeding. So long as that order remains, it is conclusive upon the rights of all the parties. The order should be reversed, with $10 costs and disbursements.


author: Herrick, J.

text:
    Ruth E. Barber et al., Resp’ts, v. Town of New Scotland, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Towns—Liability.
    Under section 16, chap. 568 of 1890, a town is not liable for injuries to land, caused by the insufficiency of a culvert in a highway to carry off surface water.
    Appeal from a judgment in favor of plaintiffs.

      Parker & Fiero (J. Newton Fiero, of counsel), for app’lt; O'Brien & Addington (Eugene Burlingame, of counsel), for resp’ts.
   Herrick, J.

This is an appeal from a judgment rendered upon verdict of a jury in the Albany county court for the sum of $487.15, damages and costs. The plaintiffs, in their complaint, allege that they are the owners of certain real estate in the town of New Scotland, situated on what is known as the Delaware turnpike or road in said town; that at the time of the said injury to the premises, and for many years prior thereto, a creek or stream of water flowed through a culvert on said Delaware turnpike, in front of or near the premises of the plaintiffs, and thence flowed across and over the lands of the plaintiffs ; that for some years past, and at the time of the injury mentioned, said culvert through which said creek or stream flowed was, and is now, too small and insufficient to carry the water that came from said creek or stream, so that the water was stopped, in part, in flowing through the same, and that said culvert was improperly constructed, and that it was not large enough to let the water pass through; that on the 4th day of May, 1893, and also on the 23d and 24th days of August, 1893, on account of said condition of said culvert, the water backed up in said culvert, and overflowed the same, and passed over and upon the said turnpike, thence to the plaintiff’s lands, overflowing the same, and damaging the real and personal property of the plaintiffs in the sum ol $500. And the plaintiffs further allege that before said overflow and damage, and for the past three years, they had notified and advised the highway commissioners of the defendant of the defective condition of said culvert, arid requested them to repair and enlarge the same, but that they had failed and neglected to do so. They further allege that said injury was caused solely through the neglect of the defendant, its servants, agents or officers, in failing to keep the culvert, highway, and road in proper repair and condition. Upon the trial it appeared that at the times named in the complaint there were severe storms, and the surface waters and the waters from the creek in question, and from a place designated as a cave” were too great in amount to pass through such, culvert, but backed up, overflowed the road, and passed upon and over plaintiff’s premises, causing considerable damage and destruction of property. In addition to what was alleged in the complaint, it appeared upon the trial that the culvert in question was one that had been built many years ago, and at a time when the Delaware turnpike or road was o.wned by a stock company.

At common law a town would not be liable for damages caused in the manner set forth in the complaint. The towns of this state are corporations for certain specified and limited purposes only, and have a limited corporate capacity. In caring for the bridges, roads, and highways of the town, they are not corporations, but political divisions of the state, organized for the convenient exercise of portions of the power of the state. The town officers are_not agents of the town, but independent officers selected to discharge certain public duties, and for the neglect or improper discharge of such duties the town is not liable. Lorillard v. Town of Monroe, 11 N. Y. 392; Ward v. Town of Southfield, 102 id. 287-295. A town, in its corporate character, has no control over the highways. It cannot lay out a highway, or discontinue one. It is not liable for failure to keep highways in repair. Under our system, no corporate duty is imposed upon towns in respect to the superintendence or regulation of highways within their limits. People v. Town Auditors, 74 N. Y. 310-315; People v. Board of Town Auditors, 75 id. 316. By article 1, § 4, chap. 568, of the Laws of 1890, the commissioners of highways in the several towns have the care and superintendence of highways arid bridges in such towns, and it is made their duty to cause “ such highways and bridges to be kept in repair.” Highway officers are not agents of the town, so as to subject the town to liability for their acts. People v. Town Auditors, 74 N. Y. 310-316; People v. Board of Town Auditors, 75 id. 316; People v. Board of Supervisors, 93 id. 397. But this rule of the common law has been, to an extent, changed by statute. By section 16, chap. 568, of the Laws of 1890, it is provided that “every town shall be liable for all damages to persons or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.” These provisions are similar to those of chapter 700 of the Laws of 1881, and under such statute it has been held that the liability of the town is commensurate with that of the commissioner of highways before the act was passed. Bryant v. Town of Randolph, 133 N. Y. 70; 44 St. Rep. 85; Clapper v. Town of Waterford, 131 N. Y. 382; 43 St. Rep. 316; Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112. Under the act of 1881 (chapter 700, Laws 1881), transferring the primary responsibility for injuries to persons or property resulting from defects in highways from the commissioner of highways to the towns, the negligence of the commissioner is still the basis of liability ; and a town is now not only liable for neglect of its commissioner in a case where he would have been liable had the injury occurred prior to the passage of the act, and where the negligence of the commissioner is such as to render him liable, under the act, to the town for the recovery had against it. To impose the liability, it must be shown that the proximate cause of the injury was an omission on the part of the commissioner to use ordinary care, under all circumstances, in the performance of his duties, i. e. such care as a reasonable and prudent person would ordinarily have exercised under those circumstances. Lane v. Town of Hancock, supra.. The test, then, is, would the highway commissioner have been liable prior to the statute? Is he liable over to the town upon this judgment? The negligence charged must be negligence in the performance of, or omission to perform, an official duty. In Gould v. Booth, 66 N. Y. 62, which was an action brought against the defendants, as commissioners of highways, to recover damages by reason of an insufficient culvert in an embankment in the highway, it was held that such commissioners were not liable, the court saying:

“Culverts and sluices are proper and necessary in highways, but their location and manner of construction are very much within the discretion of the public officers; and they should not be harassed by personal actions for injuries occasioned by inadvertence, or error of judgment, nor for a mere omission to perform an act which, although proper, or even necessary, to prevent incidental injury, when performance cannot be exacted as a legal right.”

In Acker v. Town of Newcastle, 48 Hun, 312; 15 St. Rep. 894, where an action was brought to recover damages sustained by the plaintiff because, in repairing the highway, it had been done in such a manner as to throw the surface water upon the plaintiff’s lands, it was held “that it was not part of the duty of the defendant to provide culverts to carry off such water.”

This is not a case where, by the building of a drain or sluiceway water have been concentrated together, and cast upon the plaintiff’s premises, where otherwise they would not have gone, as in Noonan v. City of Albany, 69 N. Y. 470, and cases of like character. At the most, all that can be said is that a culvert has been provided insufficient in size to carry off the surface water and the water of a running stream in times of storms. But, assuming that to be negligence, it is not every negligence of a highway commissioner, even in performing or omitting: to perform an official duty that renders a town liable. The liability of a town is, as we' have seen, a purely statutory one. “Statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.” Fitzgerald v. Quann, 109 N. Y. 441; 13 St. Rep. 395. The language of the statute is that the town shall be liable for all damages “sustained by’ reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.” The negligence of a commissioner of highways, then, which will render a town liable, is negligence which creates or permits a defect in a highway. In Whitney v. Town of Ticonderoga, 127 N. Y. 40; 37 St. Rep. 135, it was held that the term “ defective highways,” as used in chapter 700 of the Laws of 1881, “was used in reference to their condition for public travel, upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained.” In this case there is no claim that the plaintiffs’ damages resulted from any defect in the highway, as such. , They did not happen because of the condition of the road for public travel. In Robinson v. Town of Fowler, 80 Hun, 195; 61 St. Rep. 791, this court held that an action could not be maintained against a town for negligence of the highway commissioners in blasting rock for the purpose of widening a highway so that vehicles could pass each other, no defect in the highway itself causing the injury.

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

All concur.


author: Herrick, J. Putnam, J.

text:
    Isaac Teetsel, Resp’t, v. William H. Simmons et al. App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Master and servant—Appliance.
    The master is not liable for an injury to a servant, caused by the improper use of an appliance, which was sufficient for the purpose for which it was intended.
    Appeal from a judgment in favor of plaintiff.
    The part of the ice house in which the accident happened was divided into four rooms of nearly equal size (fifty feet by eighty feet each) by partitions crossing at right angles. The four rooms were known as the “North Front” and “North Rear ” and “ South Front” and “South Rear,” respectively. James Dumetry was foreman of the north front and rear rooms, and William Kiersted of the south front and rear rooms. Each foreman had twenty-one men under him, divided about equally between the front and rear rooms, whose duties were to store ice in their respective room. The ice was hoisted from the river by means of elevators, and from thence on runways into the ice house. The runways were swung parallel to and about six inches from the central partition dividing the north and south rooms, and thus parallel through the openings into the rear rooms about one-half their depth. Between the north and south front rooms was an opening, extending from the sill to the roof, four feet and two inches wide. In this opening the plaintiff stood upon a platform four feet and three inches long, ten inches wide, one inch thick, supported by cleats fastened to the uprights. On either side of the plaintiff, and about six inches from his platform, were the runways. The duty of the plaintiff was to control the direction of the ice by raising or lowering the switch, which when raised would allow the ice to run down into the rear room, and when lowered diverted the ice by an apron runway down to the level of the ice in the.front room. These runways were each four feet wide with slat bottoms, and as the filling of the house progressed these runways were hoisted about five feet at a time. Sixteen cakes per minute passed down each runway. Immediately before the accident the block which controlled one of the switches gave way, the elevator was stopped, and-worlc suspended. During this stoppage of the works, George Kiersted, a coservant employed in the room over which William Kiersted was foreman, jumped upon the runway, stepped on the platform upon which plaintiff was standing, which then broke, causing plaintiff’s fall and the injuries complained of. There was no evidence given of any defect in the board or platform.

      P. & 0. F. Ganiine. (Gharles F. Gantme, of counsel), for app’lts; Prinnies & Newcomb {A. S. Newcomb, of counsel), for resp’t.
   Herrick, J.

It seems to me that the evidence in this case establishes that the switch board upon which the plaintiff was standing at the time of the accident was placed there to be used for the purposes of a switch board only and not as a part of a passage way for the workmen of one room or part of the ice house to the other; that its occasional use as a passageway by some of the workmen was not in pursuance of any custom, or by any authority of the defendants ; that the board was reasonably sufficient for the purpose for which it was intended it should be used,—that is, as a switch board; that the accident happened by reason of the careless act of a fellow servant, while not in the performance of any duty necessary to be performed in the course of his employment. It follows from these conclusions that the judgment should be reversed.

Judgment reversed, and a new trial granted ; costs to abide the event.

Mayham, P. J., concurs.

Putnam, J.

J. (dissenting).—While not very clear about this case, it seems to me it was properly submitted to the jury. The admission of defendant Simmons, the statement of defendants’ witness Dumery, which tended to show that plaintiff was properly on the board, and other evidence in the case, I think, allowed the judge to submit the case to the j ury.


text:
    The People, App’lt, v. James H. Bean, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Appeal—Pekjuby.
    A judgment, founded upon perjured evidence, will not be permitted to stand.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.

      Cantwell & Cantwell {William P. Cantwell, of counsel), for the People; Samuel & Beman {Charles A. Burlce, of counsel), for resp’t.
   Herrick, J.

Where the court can see that a verdict has been obtained by transparent prejury, I do not think it should permit such’verdict to stand. It is true that in this case it is extremely doubtful whether, upon the defendant’s own case, there was sufficient evidence to warrant a verdict in his favor, yet I am inclined to think, as did the trial court, that there was some slight evidence upon which the jury might find the nature of the article in question. The weakness of the plaintiff’s case arises from the palpable prejury of the witness Miller. The fact that lie was a hostile witness, although sworn on behalf of the plaintiff, and the evident falsity of his testimony, might well be taken into consideration in weighing those portions of his evidence which slightly tend to prove the plaintiff’s case. The equally palpable perjury of Perkins, the only witness sworn for the defendant, exclusive of the defendant himself, rather gives weight to, than detracts from, the slight case made by the plaintiff's evidence. A judgment founded upon such evidence should not be permitted to stand. The plaintiff should be given, if it- so elects, another opportunity to establish its came of action, and the witnesses a chance to repent and tell the truth, if that be possible.

Judgment reversed, and a new trial granted; costs to abide the event.

Mayham,-P. J., concurs in result; Putnam, J., not acting.


author: Herrick, J. Mayham, P. J.

text:
    The People, Resp’t, v. Eugene E. McClure, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Evidence—Receiving stolen goods.
    Upon the trial of an indictment for receiving stolen goods, evidence that the defendant has received other stolen property than that mentioned in the indictment, does not, of itself, standing alone, prove guilty knowledge, hut there must be some connection in time, place, circumstances or in the person from whom they were received, tending to connect the two crimes together, so that, if he knew that one arti'cle was stolen, the natural inference would be that he must have known that the others were also stolen.
    Appeal from a judgment of conviction for receiving stolen goods.

      Calvin E. Keach, for app’lt; John P. Kelly, Dist. Atty., for the People.
   Herrick, J.

The defendant was indicted for the crime of receiving stolen goods. The goods alleged to have been stolen and received by him consisted of cigars, cigarettes, and various pack-, ages of tobacco. The goods .so received by him had, as it appeared upon the trial, been taken from a freight car of the Delaware & Hudson Canal Company. At the same time various articles of dry goods and merchandise, consigned to persons other than those to whom the cigars, cigarettes, and tobacco were consigned were taken from the same car. Evidence was received upon the trial of the stealing of such dry goods and merchandise from the car, and of the finding various portions of them in the possession of the defendant. There was no evidence upon the part of the people that the dry goods and merchandise were received by the defendant at the same time, or from the same person, at and from whom he received the cigars, cigarettes, and tobacco. There is evidence upon the part of the defendant that he received them from a different person, at a different time. There is no evidence of any connection having existed between the person from whom he received the cigars, cigarettes and tobacco, and the person from whom he received the dry goods and merchandise. Upon the trial the defendant objected and excepted to the reception of evidence showing the larceny from the cars of the Delaware & Hudson Canal Company of other property than that mentioned in the indictment, and to evidence of such property having been found in his possession. In cases of this kind, proof of other acts of a like character, although involving substantive crimes, may be given in evidence to prove the scienter. Coleman v. People, 55 N. Y. 81; Id., 58 id. 555; People v. Gibbs, 93 id. 470-73. The leading case upon this kind of evidence is that of Coleman v. People, 55 N. Y. 81, and in discussing the case of King v. Dunn, 1 Moody, Cr. Cas. 146; Rex v. Davis, 6 Car. & P. 177—the cases upon which the decision of the Coleman Case was based—the court said of the reported decision of the Dunn Case:

“ The report says, as all the property had been stolen from the same persons, and had all been brought to her by the prisoner, Dunn, the learned judge thought it was admissible, and proper to be left to the jury, as an ingredient to make out the guilty knowledge. In the case of Rex v. Davis, the same facts existed. The articles were all stolen from the same person, and delivered to the receiver by the same thief, though at different times, and the same ruling was made. • It is unnecessary to say that all these qualifications must exist, but, to warrant the introduction of such evidence, there must be such a connection of circumstances as that a natural inference may be drawn, that if the prisoner knew one article was stolen he would also be chargeable with knowledge that another was.”

In the same case, when it was again before the court of appeals (58 N. Y. 560), the court stated that:

“ The principal limitation of the rule is that the criminal act which is sought to be given in evidence must be necessarily connected with that which is the subject of the prosecution.”

There must be some connection of time and place, so ns to furnish a clue to the motive on the part of the accused. Evidence that the defendant has received other stolen property than that mentioned in the indictment does not, of itself, standing alone, prove guilty knowledge., In Copperman v. People, 56 N. Y. 591, the court said:

“ In the Coleman Case, recently decided by this court, it was intended to lay down a strict rule upon this subject, but the principle was -recognized that such evidence may be admissible. In Oddy's Case, 2 Denison, Cr. Cas. 272, cited by the counsel for the accused, the offer was to prove that the prisoner had other stolen property in his possession. This was clearly incompetent, for the reason stated by Campbell, C. J., that ‘ it would not be direct evidence of the particular fact in issue, viz., that at the time of his receiving specific articles he knew them to bé stolen.’ Nor would it legitimately tend to prove that the accused knew that an article received of one person to-day was stolen, by showing that on some other occasion he received another article from another person, not connected with the first, knowing it to have been stolen. Such evidence only tends to create vague and uncertain probabilities.”

Thus it will be seen that, while evidence of the receipt of stolen goods other than those mentioned in the indictment upon which the defendant is being tried may be received in evidence, yet there are certain limitations upon the rule. When received, the evidence is for the purpose of establishing guilty knowledge, and there must be some connection in time, place, circumstance, or in the person from whom they were received, tending to connect the two crimes together, so that if he knew that one artjele was stolen the natural inference would be that he must have known that the others were also stolen. In the case before us there does not seem to have been any such connection. There was no evidence, as I have before stated, that the dry goods and merchandise were_received from the same person as were the articles mentioned in the indictment, or that they were received at the same time. On the contrary, all the evidence that there is in the case shows that they were received át a different time, and from a different person. The goods were unlike in character. The only connection between the two classes of goods is the fact that they were stolen from the same car, and apparently at the same time. The circumstances under which one class of goods were received by the defendant throws no light upon the circum-. stances under which the others were received. He may have received each with guilty knowledge, but there is nothing from which guilty knowledge in the one case leads to the inference that there was guilty knowledge in the other.- I think, therefore, that there was error in the reception of the evidence relating to the theft of the dry doods and merchandise, and the evidence of their being found in the defendant’s possession, and that for such error the judgment should be reversed, and a new trial granted.

Putnam, J., concurs.

Mayham, P. J.

It was error for the people to prove that the defendant received other stolen goods at another time from other persons. Coleman v. People, 55 N. Y. 82.


author: Mayham, P. J.

text:
    William H. Durkee, as Administrator, etc., Resp’t, v. Delaware & Hudson Canal Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Negligence—Signals.
    The repeal of the statute, requiring a signal to be given on approach of a locomotive to a highway crossing, does not absolve the company from giving such a warning as will impart to travelers a reasonable notice of the approach of the locomotive.
    2. Witnesses—Credibility.
    Where the witnesses for the defendant swear positively to the existence of a fact, it is not sufficient to discredit them that they are employes of the defendant, where the only other testimony to the contrary was that of a less number of witnesses who stated that they did not observe the fact.
    3. Negligence—Contributory.
    The evidence in this case was held not to be sufficient to establish freedom from contributory negligence of the person injured at highway crossing.
    4. Appeal—Preponderance.
    While the appellate court will not interfere in a substantially evenly balanced case, or even where there was an apparent preponderance of evidence, with the conclusion arrived at by the jury, yet, where there is an overwhelming preponderance of proof against the finding < f the jury, the general term will exercise an independent judgment and give the defendant the full benefit which the law, by the right of appeal, intends he should have.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Lewis E. Carr, for app’lt; A. V. Pratt (T. F. Hamilton, of counsel), for resp’t
   Mayham, P. J.

Three grounds for a reversal of the order and judgment in this case are urged by the defendant on this appeal: First, because upon the whole evidence given upon the trial, it does not appear that there was any omission of duty on the part of the defendant in operating the train, causing the death of Durkee, plaintiff’s intestate; second, the evidence was not sufficient to sustain a finding that the absence of signals of the approaching train, even if they were not given, caused intestate’s death ; third, the evidence was not sufficient to sustain a finding that the deceased exercised the care he was bound to, to establish absence of contributory negligence on his part.

The first point, it seems, from an examination of the case and the arguments of counsel in their briefs, is the alleged failure of the defendant to sound a whistle or ring a bell on approaching this railroad junction and road crossing, at which the accident occurred. While it is true that there is no longer any statutory requirement that such signals shall be sounded at such points of danger, it is also true that railroad companies are not absolved from all obligations to exercise care and caution at such places; and a negligent disregard of that duty may constitute negligence, for which the railroad company in a given case may be held liable. This proposition seems to be conceded by the learned counsel for the appellant; but it is insisted that the proof establishes that signals were on this occasion given by the operatives of the train ; that the whistle sounded when the train approached within 1,200 to 1,500 feet from the crossing; and that the bell was rung until the collision occurred. And it is urged by the appellant that there is upon this point such an overwhelming preponderance of evidence as to make it the duty of this court to fir.d with the defendant upon this question. The jury having found with the plaintiff on this disputed question of fact, their verdict should not be interfered with on that question on this appeal, unless there is such an overwhelming preponderance of evidence on the part of the defendant as to lead to the conclusion that they have failed to have fairly and properly considered the evidence, or had adopted some erroneous method of extenuating its weight and force. The evidence on the part of the plaintiff, relied upon to establish his contention that no signals or warning were given, is the testimony of Green, who was riding with deceased, and driving the horse at the time of the accident. He says he looked and listened, and heard no whistle and no bell until just as the train struck him. Plaintiff proved this by two other witnesses, who stood at the depot,'and saw the whole transaction, but heard no bell or whistle, but state that their attention was not specially called to that fact at the time', and that they' were not listening for a signal from the train. On the part of the-defendant, it was proved by the testimony of nine witnesses, who-were in hearing and sight of the train, that the bell was rung, and, by some of them, that the whistle was sounded, as the train approached the place of the accident. Daly, who was near the depot, and- Barrett, who was at the depot, and Gilbert, the conductor, Keating, the engineer, who was riding on the engine, testified to the sounding of the whistle and the ringing of the bell. Wooden, the express agent, Hogan and Whipple, trainmen on the train, and Finn, who was employed in the yard, testified to the ringing of the bell as the train approached the crossing, and at the time of the accident. All these witnesses assumed to testify to what they saw and heard. Their testimony, is, therefore of an affirmative character, and if not true must be regarded as a deliberate perjury. On the other hand, the testimony of the plaintiff’s witnesses, who say they did not hear the bell or whistle, is of a negative character; and, while it may be entitled to great weight, it does not prove positively that the signals were not given. In Culhane v. Railroad Co., 60 N. Y. 133, Allan, J., in pronouncing the opinion of the court, and in discussing this character of evidence, uses this language :

“ As against positive affirmative evidence, by credible witnesses, to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to a jury. It must appear that they were looking, watching and listening for it,—that their attention was directed to the fact,—so that the evidence will tend to some extent to prove the negative. A mere 11 did not hear’ is entitled to no weight in the presence o£ affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact.”

Applying the reasoning of this case, and the rule here enunciated, to the case at bar, it would seem that the plaintiff had failed to prove the negative, except by the testimony of the plaintiff Green. He testifies that he looked and listened, but the force of his testimony is somewhat weakened by the testimony of Baldwin and Moran, who say that Green and the intestate appeared to be in conversation, and did not appear to be observing the approaching train. Baldwin and Moran, who swear they did not hear the whistle, state that they were not listening for a signal. All of the defendant s witnesses upon this branch of the case swear to what they claim to have seen and heard.

But it is urged by the learned counsel for the plaintiff that their testimony should betaken with a great degree of allowance, for the reason that they, or most of them, were the employes of the company. While the jury might take that fact into consideration, it does not seem that that fact alone would justify the jury in entirely disregarding and treating as untrue the testimony of so large a number of witnesses, when no other circumstance is presented to discredit them. It is urged by the defendant that Green, who has an action pending against the company for the1 same accident, had a stronger motive for giving color to his-testimony than any of the witness.es introduced on the part of the defendant. Viewing this testimony in the light of the rules for weighing evidence, it would seem that there was an overwhelming preponderance of proof in the case that the whistle was blown and .the bell sounded at the time the train approached this crossing; and, while we have seen the court should not interfere, in a substantially evenly balanced case, or even where there was an apparent preponderance of evidence, with the conclusion arrived at by the jury, still, it would seem, if in any case it was the duty of the court to interfere with the verdict upon questions of fact, this is such a case. In Kaare v. Iron Co., 139 N. Y. 369; 54 St Rep. 653, Earl, J., in pronouncing the opinion of the court of appeals, after adverting to the rule that deference may properly be paid to the views of the trial judge who heard the witnesses testify, in cases where there is a fair conflict in the evidence, yet no marked preponderance either way, adds as follows:

‘‘But when there is a vast preponderance in the evidence in favor of the defendant, and the defense is supported by numerous witnesses, apparently entitled to credit, and the plaintiff’s case stands upon his own evidence, either unsupported or slightly supported, the general term should exercise an independent judgment and give the defendant appealing to it the full benefit which the law, by the right of appeal, intends he should have."

The learned judge, in using this language, is discussing the duty of the general term to interfere, on appeal, by an examination and review of the facts, and by reversing where the verdict of the jury is manifestly against the overwhelming weight of evidence; and he adds:

“If, under such circumstances, the general term will refuse to grant a new trial on the ground that the verdict is against the weight of evidence, it is difficult to conceive of any case where it ought to do so, and an appeal to it in such a case will be entirely useless.”

It would seem to follow that, in cases of this character, the general term, on appeal, is under the same obligation to review and reverse the verdict of a jury and judgment thereon, when it is overwhelmingly against the weight of evidence, as it is to reverse for errors of law committed by the judge, where the question has been properly presented by a motion for a new trial on the judge’s minutes on the ground that the verdict is against the weight of evidence. «

It is insisted by the learned counsel for the defendant that the trial judge erred in discussing before the jury the defendant’s obligation to give some signal by the ringing of a bell or sounding of a whistle, or in some other way, on approaching the highway crossing. While the instruction of the trial judge to the jury upon that branch of the case may not be as full and complete as the defendant’s counsel might wish, yet we fail to see that any erroneous ruling or direction by the trial judge was made upon that point. The effect of the charge was that, notwithstanding the repeal of the statute which required railroad companies to signal the approach of a train at a highway crossing by the ring of a bell or blowing ■of a whistle, yet that did not absolve them from giving such warning as might afford reasonable notice to the traveler upon the highway of the approach of the train. Such instructions was not erroneous or misleading.

It is further insisted by the learned counsel for the defendant that the case does not disclose facts from which it can be found that plaintiff’s intestate was himself free from negligence which caused or contributed to the injury; and that, if it can be held that defendant was negligent in omitting to give proper signals, still the plaintiff should not recover because of such failure of proof. The undisputed facts are that intestate and Green were riding in a wagon belonging to intestate, drawn by Green’s horse; that Green was driving; that from the point where defendant’s train first hove in view to where intestate and Green were in the highway was a distance of fifty feet; that oh either side of the hjghway was a clear, level, unobstructed surface, upon which the horse and buggy might have been turned; and that proper care and attention on the part of Green and the intestate, had they looked and listened, would have enabled them to have turned aside and avoided the collision ; and that in failing to do so the intestate was guilty of negligence which contributed to the injury. To meet this contention on the part of the defendant, it is claimed by the plaintiff that the horse attached to the vehicle in which the intestate was riding became unmanagable, and dispite the efforts of the driver, ran over this intervening distance between the train and the vehicle, and •dashed upon the track, without fault of the intestate or Green; and that the negligent omission of the trainmen to give signal of the approach of the train was the cause of the horse becoming frightened. While there is evidence that Green, on approaching the railroad crossing, looked and listened, there is no proof that intestate took that precaution; and it is proved by the evidence of Moran that he and Green were talking while driving leisurely along the road about the time of the colpsion. We find in this testimony no evidence affirmatively establishing the freedom of the intestate from contributory negligence. In Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290; 30 St. Rep. 932, which was ■Somewhat analogous to the one under consideration, where the intestate was riding in a. buggy seated beside a driver, and. the approaching train could be seen for some distance before crossing, at a location well known to both, and that neither made any effort, by looking or listening, to discover the approach of the train, it was lie!I that the plaintiff was properly nonsuited on the ground ■of contrioutory negligence of the intestate. It is true that in that case the driver was hired by the deceased to convey him to a given point. The case at bar differs from that, in this: that the deceased was riding in his own buggy, which was drawn by a horse owned by the driver. But that fact, instead of releasing the deceased from the obligation of looking and listening, would seem to increase that obligation; and Potter, J., in delivering the opinion in the case cited, uses this language:

“The general rule in this class of cases is that the burden of ■establishing affirmatively freedom from contributory negligence is upon the plaintiff, or. in the language of the opinion in Tolman v. Railroad Co., 98 N. Y. 202, that plaintiff approached the crossing where the collision and injury occurred with prudence and care, and with a sense alert to the possibility of approaching danger; and the learned judge adds: 1 And this rule obtains, even where the railroad company neglects to ring its bell or sound its whistle, as required when its trains approach a crossing.’ ”

In Donnelly v. Brooklyn City Railroad Co., 109 N. Y. 16; 14 St. Rep. 29, the plaintiff was riding on a fish wagon with one McNee, which the latter was driving, and the plaintiff gave some direction as to where McNee should drive, and, following that direction, the wagon collided with a moving train on defendant’s railroad, and plaintiff was injured. It was held that the plaintiff’s evidence showed contributory negligence on the part of plaintiff and his companion, with which he 'was chargeable, and a refusal to nonsuit was held error. Tested by these cases, and by the well settled law, we are of opinion that the plaintiff failed to show want of contributory negligence, and that for that reason the motion for a nonsuit should have been granted; and that the verdict in favor of the plaintiff cannot be sustained ; and that it was error on the part of the learned judge to refuse to set aside the verdict and grant a new trial, on the minutes, on the defendant’s motion.

Judgment must be reversed, and a new trial granted ; costs to abide the event.

All concur.


text:
    In the Matter of the Lewis and Fowler Manufacturing Company. Charles G. Dodds, Temporary Receiver, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895)

    Receives—Title—Relation.
    The rule that a receiver’s title, on giving bond, relates back to the date of his appointment, does not apply so as to defeat the lien of an execution issued on a judgment recovered after his appointment, and levied beforejhe qualified. The doctrine of relation is not adopted where third parties, who-are not parties or privies, will be prejudiced thereby.
    Appeal from an order, denying a motion to set aside the levy of an execution.

      Moore, Wallace & Dudley, for app’lt; Remsen & Parsons (Daniel S. Remsen, of counsel), for resp’ts; Hirsh & Rasquin, for resp’t sheriff of Kings qgunty.
   Dykman, J.

This is an appeal from an order denying a motion to set aride a levy made by the sheriff under an execution in favor of John Boyle and William H. Mncy on a judgment entered in the supreme court of New York on the 21st day of January, 1895, which execution was issued to the sheriff of Kings county on the same day,—subsequent to the filing of the order appointing a receiver, and prior to the time when the receiver filed the security required by law. A petition for the voluntary dissolution of the above named company was presented to the supreme court, at special term, on the 18th day of January, 1895 ; and on the next day an order was entered directing all persons interested in the company to show* cause on the 8th day of June, 1895, why it should not be dissolved, and appointing Charles Gr. Dobbs temporary receiver, with a bond of $50,000, and enjoining the prosecution of all suVs, including those already commenced. The temporary receiver named filed his bond on the 22d day of January, 1895. Judgment for $2,841.06, in favor of I. T. Williams and others, was entered on January 17, 1895, against the defendant, .and a judgment for $1,529.10, in favor of the Street Railway Publishing Company, was entered on January 19, 1895, against the defendant. On the same morning, but before the receiver was appointed, execution was issued on those judgments, and a levy was made before the order of January 19th, appointing the receiver, was entered. After the appointment of the receiver, but before he filed his bond, and on January 21, 1895, a third judgment was entered against the company, for $1,886.91, in favor of John Boyle and W. H. Macy. Execution was also issued on this judgment, and delivered to the sheriff, who claimed to hold possession of the property upon which he had levied by virtue of the three executions upon the three judgments. The receiver was in possession of funds of the company sufficient to pay all three of these judgments, but he desired to pay two, and have the levy under the execution upon the Boyle and Macy judgment set aside. The facts in relation to the recovery of the latter judgment are these: The suit was commenced by the service of a summons on the company on the 12th day of January, 1895. The order was based upon a duly accepted draft for the payment of money. The draft was set out in the complaint, which was duly verified. The time to answer expired on the 18th day of January, 1895, and on the evening of that day a demurrer to the complaint was served upon the attorney for the plaintiff. On the 21st day of January a motion was made for judgment upon the demurrer, as frivolous. The motion was granted without opposition," and a judgment in favor of the plaintiffs was entered on the same day (January 21st), at 10:85 o’clock in the forenoon of that day. Immediately thereafter a transcript of the judgment was duly docketed in the office of the clerk of Kings county, and an execution was issued to the sheriff of the county of Kings at 11:05 o’clock on the 21st day of January, 1895. • At that time the receiver had not qualified by filing the security required by law.

Boyle and Macy were delayed by the frivolous demurrer of the defendant to their complaint. If the demurrer had not been interposed, their judgment would have been entered on the 19th day of January, before the order was made appointing the receiver, and then the execution upon their judgment would have been entitled to a priority. The interposition of the demurrer was a fraud upon the plaintiffs, Boyle and Macy, and upon the due administration of justice. There was no defense to the action, and the complaint was sufficient. The execution upon the judgment of Boyle and Macy was executed and issued to the sheriff on the 21st day of January, in the forenoon, as we have seen. The receiver had not then taken possession of the property, and was not entitled to do-so until he had filed his bond, which he did the next day. Boyle and Macy acquired a lien upon the personal property of the company upon the delivery of their execution to the sheriff, but when the bond of the receiver was filed his title related back to the time-of his appointment, which was anterior to the lien of Boyle and Macy under their execution. In re Christian Jensen Co., 128 N. Y. 550; 40 St. Rep. 621. Their lien was therefore divested, if the doctrine of relation is allowed its full force against them. That-doctrine is a fiction of law which was adopted for the advancement of right and justice, and resort is made to it for no other purpose. It is not adopted where third parties, who are not parties or privies, will be prejudiced thereby. In fact, fictions in law are never to-be implied to perpetuate a wrong, or defeat collateral acts which are lawful and concern strangers. Pierce v. Hall, 41 Barb. 146; Jackson v. Davenport, 20 Johns. 551; Heath v. Ross, 12 Johns. 140. It will therefore be no violation of the principles which underlie the doctrine of relation to exempt the judgment of Boyle and Macy from its operation, and subject the title of the receiver to the lien of their judgment. On the contrary, it would be quite inconsistent with the doctrine of relation to subordinate the rights of Boyle and Macy to the title of the receiver. Fiction is not fact. It is not equivalent to fact. The fact that plaintiffs, Boyle and Macy, acquired a lien upon the property of the defendant on the 21st day of January, 1895, at 10.35 o’clock in the forenoon. At that time the receiver had no title to the property of the defendant, and no right to interfere with it in any manner or for any purpose. On the 22d day of January, 1895, the receiver filed his official bond, and the title to the property vested in him, in fact and in law, at that time. By a fiction of law, his title related back to the day of his appointment, for some purposes, such as its preservation and protection, but not for the purpose of destroying vested rights, or for any unjust purpose. It would be unjust and wrong to permit the vested rights of the plaintiffs, Boyle and Macy, which they had acquired by virtue of the execution upon their judgment, to-be divested by fiction. Our conclusion, therefore, is that the lien of the plaintiffs, Boyle and Macy, was not destroyed by the filing of the bond of the receiver, or in any-other manner; that such lien continued, and the receiver took title to the property subject to that lien, and subject to the rights of Boyle and Macy to have their judgment paid out of the property before any right of his attached. The order should be affirmed, with $10 costs and disbursements. All concur.


author: Lewis, J.

text:
    German-American Bank of Tonawanda, Resp’t, v. Cornelius Daly, Impleaded, etc., App’lt. (Two cases).

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1895.)

    Appeal—First instance.
    The position cannot be taken for the first time on appeal that a fact involved was admitted by the pleadings, where, notwithstanding, the case was tried upon the theory that the question was open to litigation, and was-in fact litigated.
    Appeal from a judgment, entered in each case on a verdict in favor of plaintiff, rendered by direction of the court.
    The actions were brought to recover upon two certain promissory notes. The complaints were in substantially the same form, and in the first above-entitled action the complaint contained the following, among other allegations: “That heretofore, and on or
    about the 19th day of March, 1894, at the city of New York, N. Y., the said defendant Cornelius Daly made his certain promissory note in writing,” bearing date on that day, whereby, for value received, he promised to pay to 'the order of the said defendants John Charlton and Thomas Charlton, under the name of J. & T. Charlton, the sum of $2,700, at the Mutual Bank, New York city, three months after the date thereof, and then and there delivered the said note to the said defendants John and Thomas Charlton. That the said John Charlton and Thornes Charlton afterwards indorsed the said note, under the name of J. & T. Charlton, and the same was thereupon, and before it became due and payable, for value received, duly transferred to the plaintiff, which thereupon became, and ever since has been, the true and lawful owner and-holder thereof.”

      John R. Halsey, for app'lt; Patton, Vroman & Fish, for resp’t.
   Lewis, J.

The defendant- Daly made his promissory note for the sum of $2,700 on the 19th day of March, 1894, payable thres months after date to the order of J. & T. Charlton. The payeee thereafter, and before the note became due, indorsed and delivered it to the plaintiff in renewal of a note for a like amount held by the plaintiff, which was made by the same maker to the order of the Charltons, and indorsed by them. The note having matured, and not being paid, this action was commenced. The defendant Daly interposed a.n answer, alleging that the note had its inception in the hands of the payees, and was void for usury. At the close of the evidence each party requested a direction of a verdict; the said defendant’s request was refused, and that of the plaintiff was granted.

There was evidence tending to prove the following facts: The defendant Daly purchased of the Charltons, in 1891, a quantity of doors, sash, and house trimmings, in payment for which he gave them his promissory note for $3,000, payable to their order three months after date. The payees indorsed the note, and before it became due sold it for value to the plaintiff, a banking corporation, located at Tonawanda, N. Y. When the note fell dne it was renewed from time to time by the notes of Daly, indorsed by the Charltons. They were delivered to and accepted by the plaintiff, Daly in each instance sending his note for the amount of the one coming due, and his check for the amount of the discount, to the Charltons, and they delivered them to the plaintiff, and the plaintiff, handed the maturing note to the Charltons, who mailed it to the defendant. The bank charged and Daly paid interest upon each renewal at the rate of seven per cent, per annum. There was evidence tending to show that Daly in some instances sent to pay the discount, his check for an amount equal to eight per cent, per annum, and when that occurred the Charltons paid the hank the seven per cent, interest, and retained to themselves the extra one per cent., claiming it for their trouble in procuring the renewal. In some instances Daly failed to send sufficient funds to pay the bank the amount of the discount. When thatoccured, the Charltons made up the amount, and Daly thereafter reimbursed them. Plaintiff’s cashier and one of the payees testified that the entire series of notes, including the one in suit, were the property of the •bank. This evidence was taken without objection.

The trial court, in directing the verdict, must have found that the note had its inception in plaintiff’s hands. The defendant’s counsel does not claim that the usury defense can be sustained, if this finding was correct; but it is his contention that it is alleged in the complaint, and admitted by the answer, that the note had its inception in the hands of the 'Charltons. The complaint was drawn in the usual form of complaints upon promissory notes. It is alleged that the note was made by the maker, Daly, payable to the order of J. &. T. Charlton ; that they indorsed tile same and delivered it to the plaintiff before maturity, etc-; and these allegations were not denied by the answer; and the defendant claims from this that it follows that the note had its inception in the hands of the Charltons. This claim was not suggested upon the trial. The case was tried upon the theory that that was one of the questions open to be litigated, and it was litigated. Had the point been raised at the trial the complaint could have been amended, if it was thought necessary, to conform it to the evidence. It is too late to raise this question upon appeal. It is not claimed by the appellant that the taking of more than six per cent, interest by the plaintiff imperiled the principal, nor that the amount of extra interest received could be set off against the claim, if the note had its inception in the bank. No such defense was pleaded. Similar questions are presented by appeal No. 2, which is between the same parties, and was submitted with this case. The judgment in both cases should be affirmed.

Judgments affirmed.

All concur.


author: Stover, J.

text:
    Ronald T. McDonald et al., Pl’ffs, v. Hugh J. Grant, as Receiver, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed June, 1895.)

    Pledge—Discharge oe lien.
    Where the pledgee oí bonds, given to secure several notes of the pledgor, transfers one of the notes and part of the bonds to a third person, the pledgor, upon paying the note so transferred, may take the bonds transferred with it, discharged of all lien

      Putney & Bishop, for pl’ffs ; Bowers & Sands, for def’t Grant, receiver ; Ougyenheimer, TJnlermyer & Marshall, for def’t O’Brien, receiver.
   Stover, J.

On the 27th of January, 1891, the plaintiff McDonald entered into an agreement with the Mndison Square Bank of the city of New York, by the terms of which, in consideration of the discount of three promissory notes, made by said McDonald, each for $50,000, and each payable six mouths from date, indorsed by the Fort Wayne Electric Company, the said McDonald deposited with the said bank bonds of the Louisiana Electric Company of the par value of $200,000, the bonds having interest coupons attached. The bank, under the agreement, had the right to sell the bonds during the time that it held the notes then discounted, or any renewals that might be given, accounting for the proceeds of the sale to the extent of ninety per cent, of the face value of the bonds. It was further agreed between the bank and said McDonald that the bank would not call upon said McDonald to pay his notes until the $200,000 of the pledged bonds should have been sold, except that said McDonald was from time to time, as the notes matured, to make renewal notes, which were to be accepted by the Madison Square Bank until the bonds have been sold. McDonald reserved also the right to sell said bonds at any time, and to apply the proceeds upon the notes that might be held by the bank at the time of sale, being the notes discounted or. renewals thereof. Subsequently, and in January, 1893, the Madison Square Bank made its promissory note, payable to the St. Nicholas Bank, for the sum of $50,000, and delivered the note to the St. Nicholas Bank; and as collateral for such note and other indebtedness, the Madison Square Bank delivered one note of $50,000, made by the plaintiff McDonald, and. indorsed by the Fort Wayne Electric Company. It is alleged that when said note, delivered as collateral security, became due, it was returned to the Madison Square Bank, and a renewal thereof obtained from the plaintiff McDonald, who at the time did not know that it had been pledged as security, and the renewal note thus obtained was delivered to the St. Nicholas Bank, together with certain of the bonds of the Louisiana Electric Light Company which had been pledged by the plaintiff McDonald, as security for his notes discounted by the Madison Square Bank. Subsequently, the defendant Grant was appointed receiver of the St. Nicholas Bank, and the defendants O’Brien and Gannon were appointed receivers of the Madison Square Bank. The plaintiffs subsequently tendered to the receiver of the St. Nicholas Bank the amount of the note made by the plaintiff, with interest, and asked that the bonds held by him be surrendered to plaintiffs, which was refused.

The plaintiffs ask that the court determine the extent of the lien of the defendant Grant upon the bonds, and that upon the payment of such lien, it may be adjudged that the bonds be delivered to the plaintiffs, discharged of any lien of the Madison Square Bank or the St. Nicholas Bank. The receiver of the St. Nicholas Bank claims the right to hold the bonds as security for other indebtedness due from the Madison Square Bank, the assignment to the St. Nicholas Bank being to cover any liability which might be found to exist, irrespective of any notes made bv plaintiff. The Madison Square Bank claims the right to hold the bonds until the entire indebtedness of plaintiffs shall be paid, and insists that there can be no apportionment of the indebtedness, and that if plaintiff should pay the note now held by the receiver of the St. Nicholas Bank, the bonds would still be held subject to the lien of the other notes which have been disposed of by the Madison Square Bank.

I think the evidence shows that at the time the St. Nicholas Bank received the notes and bonds from the Madison Square Bank, it was chargeable with notice of the character of the possession of the notes and bonds by the Madison Square Bank, and knew that the bonds were held as collateral security for notes. It is not in the position of a bona fide holder without notice. The Madison Square Bank, or its receiver, cannot now contend that its rights under the contract with McDonald are still unimpaired. They might have held the notes under the contract and maintained their rights, except so far as the iusolvency and dissolution of the bank would necessarily impair them, leaving the court to equitably dispose of the various interests of the parties under the contract. But instead of this, the Madison Square Bank has seen fit to violate its contract, and to deliberately put itself in a position where it would be unable to perform if called upon by the plaintiffs to do so. It has voluntarily placed it out of its power to perform its contract, either by sale or by a delivery of the bonds, if sold by the plaintiff McDonald, and its receiver cannot now complain if, from a condition brought about by a wrong of the bank, it is in part deprived of the benefit of the contract. The plaintiff is not to blame. The bank has voluntarily severed the security held by it, separating upwards of $60,000 of the bonds as security for $50,000 of the plaintiff’s indebtedness, and plaintiff, in order to protect his rights, will be compelled to pay the note of $50,000 in order to obtain possession of the bonds of the value of upwards of $60,000.

I chink it may properly be said that the Madison Square Bank, by severing the $50,000 note, and dividing the bonds held as collateral security, released the bonds delivered to the St. Nicholas Bank from the lien of the other notes not transferred to the St. Nicholas Bank, but retained by it (the Madison Square Bank), for in no other way could the lien of the St. Nicholas Bank be effective under the agreement between the two banks. The Madison Square Bank, therefore, having voluntarily and wrongfully severed the securities, and apportioned the bonds held by it as security among and upon the different notes of the plaintiff, cannot now, when the plaintiff is called upon to pay the notes, of Which they have relinquished possession, say that they shall again be restored to the position in which they would have been but for their own wrongful act.

The plaintiff is entitled to redeem the bonds which the Madison Square Bank had parted with by paying the claim of the St. Nicholas Bank, and upon such redemption to hold them freed from any lien of the Madison Square Bank. It appearing that the St. Nicholas Bank knew that the bonds were held as collateral for the notes, no discussion is necessary to demonstrate the unsoundness of the receiver’s contention that he can hold the "bonds as collateral security for indebtedness other than that due from plaintiffs. The receiver holds the indebtedness of plainiffs which the plaintiffs are willing to pay upon the surrender of the securites held by the receiver. The St. Nicholas Bank has no right to demand more.

The plaintiffs are entitled to judgment, declaring said bonds held by the receiver of the St. Nicholas Bank to be so held as security for the amount of the $50,000 note, and that upon payment of said note the plaintiffs are entitled to receive the bonds held by the St. Nicholas Bank, freed from any other lien or incumbrance, either of the St. Nicholas Bank or the Madison Square Bank, or its or their receivers.


author: Brown, P. J.

text:
    Peter Mulligan et al., Resp’ts, v. Luther C. Vreeland, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Parties—Mechanic's lies'.
    A person, to whom, the contractor has assigned a payment to become due under the contract between the owner and contractor, is not a necessary party to an action by a laborer for the,, contractor to foreclose a mechanic’s lien.
    Appeal from an order, allowing plaintiffs to make certain other persons defendants.

      A. L. Liverman, for app’lt; H. C. Griffin, for resp’ts.
   Brown, P. J.

This action was brought to foreclose a large number of mechanic’s liens upon the appellant’s property. There are eleven plaintiffs, each one of whom has filed a separate lien, and all of whom performed labor for one Boake, who was the contractor with the appellant for the erection of a dwelling house. The action was commenced in February, 1894. The appellant answered the complaint, and among other things, alleged that on the 9th day of May, 1893, said contractor, by an instrument in writing, duly assigned to Claughey, Nichols & Co., in payment for material furnished and used in the construction of the dwelling, all moneys due and to grow due upon the second payment due under said contract, and that thereafter said contractor abandoned his contract, and failed and refused to complete the same. The date of said assignment was prior to the filing of all liens filed by the several plaintiffs with the exception of one. Thereafter, and on J une 24, 1894, the action was referred, and the trial proceeded before the referee until February 11, 1895, when it was finally submitted to him for his decision, and on the trial said Claughey was" sworn osa witness on behalf of the appellant. The order appealed from was granted upon the plaintiff’s motion and against the objection of the appellant, and permits the plaintiffs to make said Claughey, Nichols & Go. defendants, and directs the submission to the referee to be set aside, and the trial re-opened, and the issue raised or to be raised by the amended complaint to be determined in the action. The referee has made affidavit that he can render a complete determination of the controversy without the presence of any other parties than those now before the court, and it is apparent from the foregoing statement that Claughey, Nichols & Co. are not necessary parties to the determination of the claims asserted by the plaintiffs. Such being the fact, the order is unnecessary, and the trial should not be delayed.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

Dykman, J., concurs. Pratt, J., dissents.


text:
    City of Brooklyn, App’lt, v. Long Island Watter-Supply Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    1. Costs—Extra allowance.
    The court cannot, under section 3240 of the Code, grant an extra allow-, anee in a special proceeding.
    2. Same—Condemnation proceeding.
    An extra allowance in a condemnation proceeding can he granted only when the proceeding is under the general condemnation law, and not when under a special statute which does not provide any offer.
    Appeal from an order, granting an extra allowance to the company.

      Henry Yonge, for app’lt; Thomas H. Pearsall, for resp’t.
   Brown, P. J.

I am of the opinion that the court had no power to grant the order appealed from. Section 3240 of the Code of Civil Procedure authorizes an award of costs in special proceedings at the same rates allowed for similar services in action. But this section does not empower the court to grant an extra allowance. In re Holden, 126 N. Y. 589; 38 St. Rep. 504. This proceeding was not instituted under the general condemnation law, but pursuant to chapter 481, Laws 1892, and therefore the order cannot be sustained under section 3372 of the Code. Moreover, the conditions do not exist under which, alone, costs and allowances can be granted to a property owner under the latter section. That section provides for an offer by the plaintiff to purchase the property, which it proposes to take at a specified price. If the offer is not accepted, and the compensation awarded by the commission does not exceed the amount of the offer, with interest from the time it was made, no costs can be allowed either party; and it is only when the compensation awarded exceeds the amount of the offer, with interest, as aforesaid, that the court may grant costs and an allowance to the defendant, to be paid by the plaintiff. No offer was made by the city in this case, and none was necessary under the act which authorizes this proceeding.

The order must be reversed, and the motion denied.

Dykman, J., concurs. Pratt, J., dissents.


text:
    Samuel Kendrick et al., App’lts, v. George L. Wandall, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Contempt—Supplementary proceedings—Oral direction.
    Under section 2457 of the Code, a judgment debtor who, on his examination before a referee, refuses to obey an oral order of the referee and answer certain questions, is guilty of contempt.
    Appeal from an order, denying a motion to punish defendant for contempt.

      Louis Armstrong, for app’lt’s; T. D. Irumbull Jr., for resp’t.
   Herrick, J.

The respondent, a judgment debtor, was being examined before a referee in proceedings supplementary to execution. He refused to answer a number of questions propounded to him. Being orally directed by the referee to answer such questions, he again declined. The appellants thereupon took proceedings before the county judge who granted the order under which the respondent was being examined to punish him for contempt in refusing to answer such questions. The county judge denied the motion to punish the respondent for contempt, and the order denying such motion states that it is denied “upon the ground that a party cannot be punished for contempt for refusing to answer a question under the oral direction of a referee.” The same question arose under the old Code of Procedure (section 302), which read as follows:

“If any person, party or witness, disobey an order of a judge or referee, duly served, such person, party or witness, may be punished by the judge or court as for a contempt.”

And the court, in the case of Lathrop v. Clapp, 40 N. Y. 328336, said:

“The object and design of this 302d section of the Code was to give full power to the judge to punish any witness for contempt of referee’s orders, that a full and complete examination of the witness might be secured without a special application to the court to compel it; and I think, when the referee orders the witnesses to answer questions, that is a sufficient service, if the witness is present when the referee orders him to answer. The practice, I am sure, has been so understood, and it would be almost intolerable to require the referee to make 150 or 200 or any number of orders, in writing, requiring the witness to answer, and have formally served upon the witness.”

While there may have been some doubt under the phraselogy of section 302 of the Code of Civil of Procedure, which required a construction by the court, the present Code is so clear and explicit that it needs no discussion or argument to explain its meaning. The attention of the county judge was probably not called to it. Section 2457 of the Code of Civil Procedure reads as follows:

“Any person who refuses, or without sufficient excuse neglects, to obey an order of a judge or referee, made pursuant to the last two sections, or to any other provision of this article, and duly served upon him, or an oral direction, given directly to him by a judge or referee, in the course of the special proceeding; or to attend before a judge or referee, according to the command of subpoena, duly served upon him; may be punished by the judge or by the court out of which the execution was issued, as for a contempt.”

This section puts it beyond all question that there is no necessity for a written order of the referee directed to, or served upon, the party under examination, as a basis of proceeding against him for contempt. It expressly provides that a persou guilty of disobeying the oral direction of the referee is guilty of contempt. The sole and only ground, as stated in the order, upon which the country judge refused to punish the respondent for contempt, being erroneous, the order denying the motion must be reversed, and the proceedings remitted to the county judge for further action.

Orders reversed, with costs and disbursements.

All concur.