author: INGRAHAM, J. WILLIAMS, J.

text:
    Lawrence P. Farley v. Mayor, Etc., of City of New York.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Municipal corporations—Obstruction of street—Liability.
    A city is not liable for injuries caused by a collision at night with a truck standing in a street, unless the truck had been standing long enough to make it the duty of the city to remove it; and it is immaterial that on several previous occasions the owner of the truck had left it standing all night at the same place. Williams and O’Brien, JJ., dissenting.
    Appeal from trial term, New York County.
    Action by Lawrence P. Farley against the mayor, aldermen, •■and commonalty of the city of New York for personal injuries. The complaint was dismissed, and plaintiff appeals.
    The facts are stated by Mr. Justice WILLIAMS as follows:
    The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by negligence of the defendant. The motion to dismiss the complaint was made at the close of the plaintiff’s evidence. No evidence was given on the part of the defense. The grounds of the motion were a failure to show negligence on the part of the defendant, and the absence of contributory negligence on the part of the plaintiff. The evidence given on the part of the plaintiff tends to show the following facts: The plaintiff, at the time of the accident, was a fireman in the fire department of New York ■City, and had been for upward of 20 years. He was attached to engine company 20, on Marion Street, and was a driver of Lose cart No. 20. On the morning of November 20, 1892, .about 1:30 a. m., there was an alarm of fire sent in from the Bowery, near Broome Street. Plaintiff heard the alarm, got ■out of bed, and into his seat on the hose cart, and drove off to the fire, as fast as he could (as he expressed himself). He drove through Marion into Broome Street, and started easterly along Broome Street towards the Bowery. It was pretty dark. He was driving in quite a hurry. He saw nothing in front of him, "but there was a truck standing in the.street. There was a ■collision by the hose cart with the truck. Plaintiff was thrown off upon the ground, and received serious injuries. Plaintiff was receiving a salary of $1,200 a year as fireman. He was never able to return to his work as fireman after the accident, .and September 20, 1893, was retired on half pay, $600 per year. The collision was on Broome Street, between Mott and Mulberry streets. There was a street railroad track at that ■point in Broome Street, and plaintiff was driving with one of his wheels between the rails of the track. Plaintiff drove a pair of horses on the hose cart. He had driven this team for many years. They were manageable, and the harness and ■cart were in good condition. The other firemen connected with the company were on the cart with the plaintiff. The •assistant foreman sat beside him on the seat, and others were on other parts of the cart. None of these men saw the truck in the darkness of the night until the collision occurred. The truck stood in front of 383 Broome Street. It was a double truck, and for three or four months before the accident it was accustomed, three or four nights in the week, to be left standing there over night, and sometimes it was left there daytimes. Broome Street was a wide street, not a narrow one. The motion . to dismiss the complaint ivas granted, and plaintiff excepted. A motion for a new trial on the minutes was made •and denied, and from the judgment entered upon this decision, and from an order denying this motion for a new trial, this appeal is taken.
    Charles Steckler and Joseph Steiner, for appellant ; Francis M. Scott, William H. Rand, Jr., and Terence Farley, for respondents.
   INGRAHAM, J.

—The only ground upon which it is claimed that the defendant is liable for the injury sustained by the plaintiff is that it was negligent in allowing a truck to remain in a public street, whereby the street was rendered unsafe for its use by the plaintiff. It is not claimed that the city of New York was the owner of the truck, or placed it in the street, but that it was the duty of the city of New York to remove the truck from the street, and so give to the plaintiff the free and uninterrupted use of the whole street. A person leaving a truck in a public street at night would undoubtedly be maintaining a nuisance, and would be liable for an injury sustained by any one in consequence thereof; but a municipal corporation is only liable for neglect in the performance of the duty imposed upon it by law of removing or abating a nuisance when created in a street. To justify a finding of such negligence it is necessary to show that either express notice was given to the municipality of the existence of the nuisance, and that a sufficient time elapsed to enable the municipal corporation to abate it, or that the unsafe condition of the street had existed for such a time that notice to the city authorities could be presumed, and a sufficient time for the abatement of the nuisance after such presumptive ■notice. We think that this case fails to show either such notice or that a nuisance had been maintained for a sufficient time to justify a presumption of notice. It would appear that this truck was in daily use, its owner removing it in the morning, and occasionally leaving it in the street at night. There could be no presumption that because he had left it in the street other nights, contrary to law and the corporation ordinance, he would on the night in question repeat this illegal act. Nor was there any presumption that he would select this particular spot to leave Ms truck, so that the city could have on hand its agent to remove it as soon as he had left it there. There is evidence to show that on prior nights he had selected this particular spot at which to leave his truck; but on each night that it was left there, before the city could have notice of the fact that it had been left there, it had been removed. Thus, if the city had attempted to abate the nuisance maintained by the owner of this truck on prior nights, before its officers could have got to the place at which the truck had been left it would have been removed by the owner of the truck himself; and, as before stated, the fact that this owner had on prior nights left his truck in the street at this particular spot could not be held to have been notice to the defendants that he intended to again leave the truck at this particular spot.

We do not think that this case is distinguishable from the case of Breil v. City of Buffalo, 144 N. Y. 165 ; 62 S. R. 863. There it appeared that the owner of the house fronting upon the public street was engaged in filling up'his lot by bringing dirt to the street in front of his house, where it was unloaded, and then drawn in wheelbarrows into the yard belonging to. him. At times the dirt was drawn to the street faster than it was wheeled away, and in that manner it accumulated during the day. Upon one night the dirt was allowed to accumulate in the street so fast that it was not all drawn away during the day, and a pile of dirt remained in the street during the night, in consequence of which the plaintiff was injured. It was held that:

The act of Franklin in permitting the dirt to remain in the street on the night of the accident was not sufficient to charge the city with any negligence whatever. Under the circumstances, there could have been no presumption that the dirt would be permitted to remain over night, even if the city officers had seen it there during the day.”

If the officers of the city had on the preceding night seen, this truck standing in the street, it could only have removed the truck to the corporation yard, and taken proceedings against the owner, and subjected him to such penalty as had been incurred by him in leaving the truck in the street. The corporation authorities could not have prevented the owner of the truck from regaining possession of the truck, and again, leaving it in the street; and, unless we are prepared to hold that every truck placed in the street by any one must be. removed by the city within three or four hours after it is so. placed, or, in default of such removal, the city is-liable to any one for any injury sustained in consequence of the truck being-in the street, we cannot hold that the city neglected any duty in not removing this truck from the street on the night in question. No case with which we are acquainted has held that the city is responsible for an accident happening in consequence of a collision between two wagons in a street, whether both of such wagons are attached to horses or not, without proof that one of such wagons had been left in the street in such a position as to render the street unsafe for use for such a length of time that it had become the duty of the city to remove it. Such evidence was wholly wanting in this case, and Ave think that the complaint was properly .dismissed.

The judgment must be affirmed, with costs.

YAK BRUKT, P. J., and PATTERSOK, J., concur.

WILLIAMS, J.

(dissenting).'—The dismissal of the complaint was improper. It Avas q case for the jury upon both the question of the defendant’s negligence and the absence of contributory negligence on the part of the plaintiff. It Avas the duty of the defendant to keep its streets in a reasonably safe condition for public travel. This truck was standing in the street in the night-time, was an obstruction in the street, whieh rendered the street unsafe for public travel. It had been accustomed to stand there three or four nights in the week for three or four months before the accident. It Avas peculiarly dangerous in the night-time, when it Avas difficult, by reason of the darkness, to discover its presence there, and avoid it. The city was at least chargeable Avith constructive notice of this obstruction, and it neglected its duty in permitting a truck to be stored in the street, night after night, for weeks and months before the accident. There can be no doubt whatever that there was at least sufficient evidence to render the question of the defendant’s negligence one of fact for the jury.

It is equally clear that the question of contributory negligence on the part of the plaintiff was one of fact for the jury. Contributory negligence is always a question for the jury, unless some act or neglect on the part of the plaintiff can be pointed out constituting contributory negligence as a matter of laAv. Here it is said the plaintiff Avas driving too rapidly, that he should have driven more deliberately, that the laAv prohibited driving faster than five miles an hour, and the plaintiff Avas within this provision of Mat. While the manner in Avhich the plaintiff was driving, and the rapidity with which he was driving, and the care he was exercising, AYere facts which might be considered by the jury upon the question of contributory negligence, Ave cannot assent to the proposition that the evidence in this case, as to these facts, made the question of contributory negligence one of May for the court, rather than one of fact for the jury. Kegligence is a failure to perform a legal duty, and it could not be said as a matter of May that it Avas the duty of plaintiff and his associates to driAre sloAAdy and deliberately, and keep the speed 'of the team below five miles an hour, AArhile on their Avay to a fire. The duty of firemen, Avhen an alarm of fire is sent in, especially in the night-time, when not only property, -but human life, may be in danger, is to get up, and get out, and reach the fire, not slowly and deliberately, but hurriedly, and as quickly as possible, having due regard to their oavu safety. A feAV seconds’ loss of time may mean large loss of property, and perhaps life. Firemen clo not know how urgent the call is when the alarm comes in. The call always means Come at once! Come quickly! Lose no time! ” and the duty of firemen is to obey the call, and be quick about it, and not slow and deliberate. We are unwilling to assent to the proposition, as a rule of law, that the duty of firemen going to a fire is to keep within the rate of speed of five miles an hour, and to drive slowly and deliberately. There was no proof in this case as to the precise or approximate rate of speed-the plaintiff was driving at the time of the accident. He says himself that he drove off from the engine house to the fire as fast as he could, and at the time of the accident he was driving in quite a hurry. The court was not justified in holding as matter of law that plaintiff was guilty of contributory negligence as to the rate of speed he was driving at the time of the accident. It was a question for the jury, and not for the court. He knew Broome Street; that it was a street of considerable width. He did not know that this double truck was being stored there, during the nighttime. He had a right to assume, in absence of any. knowledge or notice to the contrary, that the city had performed its duty of keeping the street free from dangerous obstructions in the night-time, and in a reasonably safe condition for public travel. He was an experienced driver of hose carts; had a, team experienced in the work; one that he knew we‘ll; and he was attending to his driving, and doing the best he could, apparently, to get to the fire as quickly as possible in the performance of his duty. The court was not justified, upon the evidence given in tlie case, in holding as a matter of law that ■ he was guilty of contributory negligence. It was clearly a question for the jury. He was bound .to the exercise of such care, under all the circumstances of the case as an ordinarily careful and prudent person would have exercised. Whether he did exercise such care or not was a question for the jury, and not for the court.

There are no other questions raised in the case of sufficient-merit or importance to call for a reference to them in this opinion.

The court erred in dismissing the complaint. The judgment and order appealed from' should be reversed, and a new trial ordered, with costs to the appellant to abide event.

O’BRIEN, J., concurs.


source: Caselaw Access Project

author: VAN BRUNT, P. J.

license: Public Domain

text:
    Rufus O. Parker v. Mayor, Etc., of City of New York.
    (Supreme Court, Appellate Term, First Department.
    November 6, 1896.)
    Negligence—Burden of proof—Instructions.
    Where defendant’s scow broke loose from the tug by which it was. being towed, and drifted against plaintiff’s vessel, moored at a dock, it is error to charge that plaintiff must satisfy the jury that the defect which caused the scow to break loose existed for such a length of time as to justify the presumption that defendant had constructive notice of its existence, because such charge imposes on plaintiff the burden, of showing that defendant was negligent in allowing the scow to break loose from the tug.
    Appeal from trial term, ¡New York County.
    Action by Rufus 0. Parker against the mayor, aldermen, and commonalty of the city of ¡NTew York, for injuries to plaintiff’s bark, which was injured by defendant’s scow. ¡From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    John A. Deady, for appellant; Theo. Connoly, for respondent.
   VAN BRUNT, P. J.

—This action was brought to recover damages from the defendant for a collision occurring on the 11th day of September, 1889, in which the bark, J. W. Dresser, which was lying moored at a dock in the city of Brooklyn, was run into and injured by a scow in tow of the tug Dassori, which tug and scow belonged to the city of ¡New York. It appears from the evidence that the tug was towing two scows belonging to the city into ¡Newtown Creek, that there was a stiff wind blowing at the time, and that one of the hawsers extending from the tug had given away, when the strain came-upon the other hawser, it carried away the bitt upon the scow to which it was fastened. The tug thus lost all control of the-scows, and they were carried by the tide, if not by the wind, against the bark in question. There is a dispute in the evidence as .to the direction in which the wind was blowing, it being claimed upon the part of the plaintiff that it was blowing from the north or northeast, the tide running' up, and upon the part of the defendant that it was blowing from the. southeast.

It is urged upon the part of the plaintiff that the verdict was against the weight of evidence. In answer to this objection, it was stated in the points of the respondent’s counsel that, as the case did not contain the proper certificate that it contains all the evidence, no question of fact could come before this court for review. Upon the attention of counsel being called to this objection, and to the fact that the case did not contain this statement, the objection was waived on the-argument by the counsel for the respondent, and it was admitted that the case did contain all the evidence taken upon the trial. Upon a consideration of the evidence, however, it does not seem that, if the jury were properly instructed as to the law of the case, the verdict was against the evidence. It is undoubtedly true that, where a moving vessel collides with a vessel which is moored to a wharf, the burden of showing that the collision was caused by inevitable accident is upon the defendant. The jury were justified in finding, from the evidence in this case, that the tow was properly managed, that it was properly attached to the tug, and that upon the breaking of the hawsers the action of the captain was such as a prudent man would take; and with this conclusion of the jury it does not seem to us that we can interfere.

This brings us to the exceptions to the charge, and in this it ■seems to us that error was committed. The court charged that, in order to entitle the plaintiff to recover in this action, he must satisfy the jury that the defect in the bitt existed for such a length of time as to justify the presumption that the city had constructive notice of its existence, or that it had actual notice; that the defective condition of the bitt had existed sufficiently long to have imposed a duty upon the city in reference to its repair; and that if, upon the evidence, the fact is not established that this condition was known or had existed long enough to charge the defendant with notice of any latent defect, the- defendant is not guilty of negligence, and the plaintiff cannot recover. To these portions of the charge exception was duly taken. It seems to us that the court placed the burden of proof upon the wrong party in thus stating the rule of law. It was for the defendant to clear itself of negligence. It was not for the plaintiff to show that the collision was the result of the defendant’s negligence. The plaintiff’s vessel was lying moored to a wharf, in a safe position. The defendant’s vessel, moving, collided with it; and it is apparent that the defendant is called upon to excuse itself for causing the injury thereby resulting. Instead of requiring the defendant to do this, the learned court, by the charge in question, required the plaintiff to show affirmatively that the defendant had been guilty of negligence. This, we think, was shifting the burden of proof, and was not requiring the defendant to prove that which it was compelled to prove in order to escape the result of the injury which had been inflicted by its own vessel.

The evidence in the case showed that it was a common thing in other boats for these bitts to pull out, and that upon going to sea this bitt had been pulled out of the scow- in question. The boatman in charge of the scow swore that he had looked at the bitt in question, but he does not appear to have examined it closely. Upon this condition of the proof, the jury may very well have thought that the plaintiff had not' established the fact that this bitt had been' out of order the length of time required by the charge to place the defendant in default; whereas, upon the same evidence, they might also have come to the conclusion that the defendant had not shown that it had used such diligence as would absolve it from the charge of negligence. The difficulty in the case seems to have been caused by applying the rule which obtains in reference to the condition of the streets, etc., in the city, which rule has no application to those casés where the city is the aggressor, as in the case at bar.

Tor these reasons, we are of opinion that the judgment was erroneous and that the judgment and order appealed from should be reversed, and a new trial ordered with costs to appellant to abide event.

All concur.


author: VAN BRUNT, P. J. O’BRIEN, J.

text:
    James T. Doyle v. J. Gilbert White.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    2. Master and servant—Negligence of master—Defective appliances.
    A master is not chargeable with negligence because of the breaking of an appliance of the usual size and material, but improperly welded, where the appliance was manufactured by a responsible concern, from which the master purchased it, with others, and it was put in position by a fellow servant, and no weakness was apparent to ordinary observation. 85 N. Y. Supp. 760 affirmed.
    1. Same—Evidence—Prior accidents.
    Where a servant was injured in consequence of latent defects in an appliance which, with others, was purchased by the master from a responsible concern, evidence as to whether any of the appliances broke “ the day or a day or two previous,” does not tend to show that the master had notice, before the accident, that the appliances were defective, and was therefore properly excluded. O’Brien, J., dissenting.
    Appeal from superior court of New York City, jury term.
    Action by James T. Doyle against J. Gilbert white for personal injuries. The complaint was dismissed (35 H. Y. Supp. 760), and plaintiff appeals.
    J. E. Kelly, for appellant; H. C. Smyth, for respondent.
   VAN BRUNT, P. J.

—This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the defective construction of a certain eye-bolt, which defective construction caused the bolt to break. The plaintiff was employed by the defendant as a lineman 'in the construction of an electric railroad on Baronne Street, in the city of Hew Orleans, and was injured while helping to string a feed wire over a certain span wire which connected two poles across the street. This span wire was fastened to the eyebolt at the top of each pole, and it was drawn tight, so that the tops of poles were drawn towards each other. The plaintiff had his left foot on the top round of the ladder and Ms right leg around the pole. He had hold of the feed wire, and was just laying- the feed wire in a wire hook that was hung over the span wire. As the weight of this feed wire rested in the wire hook, the eyebolt broke. The tension being removed, the pole flew back, and the plaintiff was thrown to the ground. The eyebolt was welded, and it parted at the weld. A good eyebolt of the size of the one which broke ought to hold 2,000 pounds. It appeared from the evidence that this bolt was not manufactured by the defendant, but was bought by him of reputable manufacturers, and -to all outward appearances was entirely suited for the purpose to which it was put. Upon the foregoing facts appearing, the learned justice dismissed the complaint, and on the judgment thereupon entered this appeal is taken.

A motion for a new trial was made, and the learned court below wrote a careful opinion in denying the motion, and we might rest this decision entirely upon that opinion were it not for the claim made upon the part of the appellant that there was no proof that the defendant ordered the eyebolt from responsible and well-known manufacturers, as was assumed by the court below; and that, the defendant having offered proof, the trial judge had no right to pass upon the truthfulness of this proof, nor upon the conflict arising from the evidence, but that this was for the jury.

It is also urged that the court erred in the exclusion of testimony. Upon the examination of the evidence in the case we think the learned judge was entirely correct in holding that the evidence showed that the eyebolts in question were bought from- a responsible manufacturer, who had a good reputation. It is true that one of the witnesses who was called to prove these facts was at first unable to remember, the name of the corporation which had manufactured the bolts; but, upon being shown the bill for the eyebolts, which had been paid by him, he stated the name of the corporation, which corresponded with the description previously given by him in his testimony; and his evidence was to the effect that the reputation of these manufacturers was of the best. -Another witness, who was the treasurer of the manufacturer, was also examined, and testified to the same effect, and there was no evidence whatever offered to the contrary. There was, therefore, no conflict of evidence, and nothing in the case from which the jury could find that the bolts in question had not been purchased from a reputable manufacturer; and, it appearing that the defect in the bolt was one which could not be detected upon an external examination, the defendant was shown to have done all that the rules of law required him to do, as appears in the opinion of the learned court below. There was, therefore, no assumption upon this subject, in the opinion of the court, which was not fully borne out by the evidence.

But it is urged that the court erred in excluding the following question : 11 Q. Did any of these ringbolts break the day or a day or two previous to that accident ? ” This was objected to, the objection sustained, and an exception taken by the plaintiff’s counsel. Then the question was asked, Q. Previous to that?” Same objection, ruling, and exception. It is clear that the question first excluded was entirely incompetent, because the breaking of a similar bolt upón tire day of the happening of the accident did not tend to prove that the defendant had noticed prior to the accident that the bolts were defective. The next question is not subject to this criticism, because' it refers to a time previous to the happening of the accident. But the difficulty with this question was that there was nothing to show that there was anj^ intent to prove the breaking of more than one of these eyebolts. There was no claim made by the counsel that he intended tq prove the circumstances under which the breaking occurred, or that it was of such a character as to call the attention of the defendant to” any defect in the eyebolts. If the counsel intended to offer further proof, so as to make this question material by reason of circumstances attending the breaking, or by the fact that breakages were of so frequent occurrence as to indicate weakness in the bolts, he should have so informed the court, so that the court might have understood what was claimed by the counsel to be the pertinency of the evidence. The breaking of one eyebolt was not evidence of the character of the lot, it appearing from the facts testified to upon the trial that the weakness resulted from- an imperfect welding, which could not be detected by examination, and which ivas not a defect of manufacture which would necessarily or probably run through the lot of eyebolts bought. We do not think, therefore, that the court was bound to know that there would be any attempt upon the part of the plaintiff by additional proof to make evidence of this character pertinent.

Under all the circumstances of the case we do not see that any error was committed; and for the reasons stated in the opinion of the court below, as well as those here given, we think the judgment should be affirmed, with costs.

WILLIAMS, PATTEBSOB, and IBGBAHAM, J.J., concur.

O’BRIEN, J.

(dissenting).—I .think the rulings excluding evidence of the breaking of eyebolts previous to the accident was error. The plaintiff was met at the very outset of his attempt to prove previous breakings by an objection which was sustained, and he was not obliged to go further to strengthen his exception to the ruling. Painton v. Railway Co., 83 N. Y. 7


author: PATTERSON, J.

text:
    People v. American Steam-Boiler Ins. Co. Matter of Johnson & Johnson.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Casualty Insurance—Limitation of action—Claim under policy.
    A claim against a casualty insurance company for disbursement for surgical aid to a person injured, and for the defense of an action by such person for the injuries, is governed by the same limitation as is prescribed by the policy for the losses arising under the policy; no-independent contract by the insurer to pay such items being shown..
    Appeal from special term, New York County.
    Claim by Johnson & Johnson, a foreign- corporation, against-Henry S. Ward, as receiver of the American Stóam-Boiler Insurance Company. The claim was dismissed, and claimant,appeals.
    William C. Wallace, for appellant: J. C. O’Conor, for respondent.
   PATTERSON, J.

—The claimant, Johnson & Johnson, a New Jersey corporation, held a policy of insurance issued by the American Steam-Boiler Insurance Company. That company went into the hands of a receiver, to whom the claim of' Johnson & Johnson was presented. It was rejected. A reference was agreed to, and, after a hearing, the referee reported adversely to the claimant. From the judgment entered,, after confirmation of the report of the referee, dismissing the* claim with costs, this appeal was taken.

According to the verified statement of claim presented to-the receiver, that claim consisted of a demand for payment of the amount of a judgment recovered in New Jersey by one-Martin Cauley for injuries received by him while in the employment of Johnson ■& Johnson, and for moneys paid out and expended by it for immediate medical aid rendered to Cauley at. the time his injuries were received, and for moneys expended in the defense" of the Cauley action. These two items of expense are alleged in the statement to have been disbursements, incurred at the special instance and request of the insurance-company, and áppear to be counted on as constituting causes-of action arising independently of the policy. That policy was issued to cover the year 1890, from the 1st of January. It contained, among other things, a clause insuring Johnson & Johnson against “accidental personal injury and loss of human- life, for which injury or loss of life the assured may be-liable to Ms employés or to any other persons whomsoever, and which shall be caused by said' boilers or any machinery of whatever kind, connected with or operated thereby.” Cauley entered the service of Johnson & Johnson on May 26, 1890,. and on the same day received serious injuries while operating-a machine at which he was set to work. In July, 1891, by his guardian, he brought an action against Johnson & Johnson, and recovered a judgment therein for $1,500, which judgment was entered in April, 1892. Johnson & Johnson appealed from such judgment, and in November, 1892, the ajjpellate court in New Jersey reduced the judgment to $4,000, and affirmed it at that sum, and the amount thereof was paid by Johnson & Johnson in November, 1892. No claim arising under or outside of the policy was presented by Johnson & Johnson until March, 1894; that is to say, four years after the accident happened, and 16 months after the final judgment in the appellate court was recovered, and the amount thereof paid. Among the conditions of the policy, and forming part thereof, is the following :

No suit or proceeding shall be brought to recover any sum for loss of property arising under this policy unless commenced within one year from the date of the explosion or accident, nor for loss arising from injury to person or from loss .of life unless commenced within three years from said date ; and in case a suit instituted by a third party against the assured for personal injury or loss of life be pending at the termination of said period of three years, a suit may be brought against the company within six months from the termination of said suit and not later.”

That identical provision of the policy of the American Steam-Boiler Insurance Company was construed by the general term in the matter of the claim of the Gendron Iron Wheel Co., 89 Hun, 456, 35 N. Y. Supp. 322, and on a state of facts presenting the same question as that involved here with respect to the limitation contained in the policy; and it was there held that the period of six months in which a suit may be brought, as provided by the policy, dated from the termination of the suit. The delay of the claimant in presenting the claim in this matter for 16 months is fatal to its right to recover under the terms of the policy. This case is not distinguishable from that cited.

It is argued that the claimant was entitled to recover for the moneys disbursed for medical and surgical aid, and in the defense of the Cauley action, outside of the terms Of the policy of insurance. It is sufficient to say, upon that subject, that the proofs submitted to the referee do not establish an independent contract, express or implied, to pay the assured for either of those items of expense. What transpired in the correspondence between the assured, the company, and the attorney of the company, and what was said between Mr. Yan Oleef and the attorney for the company, is insufficient to make out an independent contract of the nature suggested. The policy provided for reimbursement to the assured for medical aid furnished under such circumstances, and also provided for the company undertaking the defense of an action " brought .against the assured, and the breach of the contract by the insurance company iú these respects would furnish a claim arising under and not outside of the policy; for, by the terms of that policy, any outlay for immediate medical or surgical relief was to be deemed part of the liability of the company under the policy, and its obligation to defend the suit is also one assumed by the policy, and any action for a breach of that contract would be necessarily one arising under and connected with the liability it assumed in the policy, and would therefore come under the limitation of time fixed for the beginning of a suit against the company.

The judgment appealed from must be affirmed, with costs.

All concur.


author: INGRAHAM, J. PATTERSON, J.

text:
    Mary Garety v. David H. King, Jr.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    1. Master and servant—Safe place to work—Question for jury.
    It is a question for the jury whether a roof from which men were required to shovel snow was a safe place for them to work,-where there was a flat skylight, consisting of a frame and ordinary window glass, without any protection around it. Ingraham, J., dissenting.
    3. Same—Contributory negligence.
    Contributory negligence is 'a question for the jury where an employé shoveling snow on a roof fell through an unprotected flat skylight consisting of a frame and ordinary window glass, erected while he was working about the building, and there was no one who saw him fall. Ingraham, J., dissenting.
    3. Same—Instructions.
    An instruction that, if plaintiff’s intestate knew of the existence of the skylight through which he fell, but exercised care to avoid the • accident, plaintiff might recover, is erroneous, since it is tantamount to saying that, if intestate was free from negligence, he did not assume the risk of working in a place known to him to be dangerous.
    4. Same—Risk incident to work.
    .An employé assumes the risk of falling through an unprotected flat skylight in a roof, erected while he was working on a building when he undertakes to shovel snow from the roof. Per Ingraham, J.
    Appeal from trial term, New York County.
    Action by Mary Garety, as administratrix of Francis Garety, deceased, against David H. King, Jr., to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Edward B. Thomas, for appellant; Nelson Zabriskie, for respondent.
   INGRAHAM, J.

—The action is brought to recover for the damage sustained by the death of the plaintiff’s intestate. By the plaintiff’s evidence it appeared that the deceased was killed on tlie 18th day of February, 1893, by falling from the temporary roof of the building which the defendant was erecting, through a skylight in the roof. The plaintiff produced no witness who saw the accident. It appeared that the defendant had erected a temporary roof over the building that he was constructing, made of rough boards; and in the middle of that roof, ior the purpose of lighting the interior of the building, was placed an ordinary window sash for a skylight. On the ITth and 18th of February, 1893, there had been a heavy fall of snow, and on the morning of the 18th, some time before 12 o’clock, the plaintiff’s intestate, with other men, ivas sent upon the roof to shovel off the snow that had fallen there. The men continued at that work until dinner time. Just before dinner, one of the men in the defendant’s employ hallooed to the men shoveling snow to look out, that there was a skylight there; the deceased was present with the witness when the warning was given, and the witness said that after that Avarning he saw the skylight, covered with snow. Another man, who was also working on the roof before dinner, testified that he heard no such warning, but he worked there but a short time, having been called to other work. After dinner, it seems that the plaintiff’s intestate returned to the roof to work, with at least one other man, and deceased subsequently fell through this skylight, and ivas killed. It was disputed whether, at the time of the accident, the skylight had been uncovered; but the roof had been only partly uncovered, the men working towards the skylight, pushing the snow in front of them Avith pushers. Ho one that testified saw the plaintiff’s intestate fall; and there is no eiddence to show AArhy it Avas that he walked into or fell through the snoAV on the skylight aAvay from the place at Avhich he Avas Avorlcing. The plaintiff’s intestate had been Avorking about this place for about four months, and the interior of the building depended largely upon the skylight for light. I can see no principle upon Avhich this defendant, upon this evidence, can be held liable for this accident. The plaintiff’s intestate Avas sent up to this roof to shovel snoAV. He aauls directed to Avork upon this ■ particular roof ; and the condition of this roof, and the labor that he Avas required to do there, would seem to have been as well knoAAm to the plaintiff’s intestate as to the defendant or to his agent. The ordinary risks incident to that Avork were taken by the deceased AArhen he accepted the employment to do the work. Working upon a temporary roof, or a scaffold of any kind, is more or less dangerous; and the risks incident to the employment, or the position in Avhich the Avorlc is to be done, are taken by the person doing the Avork; and, as long as the employer sees to it that no secret defects render the position or appliances used for the Avork more dangerous than ordinary observation Avould indicate, or notifies his employe of any peculiar dangers incident to the Avork, not visible or apparent to a person of ordinary intelligence, ho has performed his duty ; and, if an accident happens, or the employé is injured, the employer is not liable. The direction to shovel the snow off this roof was accepted by the deceased, and thereby he took the risk of the dangers incident to that work; and while engaged in doing the work, in some unexplained way he fell into this skylight. Just how or why he fell through the skylight is, therefore, not apparent, but it is quite evident that, it he had proceeded in the ordinary way in the execution of his work, simply shoveling or pushing the snow away in front of him, he would have discovered the skylight before reaching it, and thus avoided it. He was sent to clean the roof from snow. The very nature of Ms employment was notice to the deceased that all defects in the roof were covered up, and that, to be safe, he must proceed by uncovering the roof before walking upon it. The roof itself was a temporary one, not permanent, where a person sent to work upon it could assume that it was of a character that all parts of it would be safe. The risks that a man assumes in working upon such a roof covered with snow, and the degree of care that he was bound to exercise to avoid injury, must be materially different from that in the case of a permanent structure which one would have no reason to assume was dangerous. In the case of Crown v. Orr, 140 N. Y. 452, 55 S. R. 834, the court say :

“ The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment, or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the master in case of personal injury to him.”

See, also, Kennedy v. Railroad Co., 145 N. Y. 294; 64 S. R. 705.

Applying this principle to this case, it seems to me quite clear that the risk of falling off or through this temporary roof was a risk incident to the employment, or arising in the course of the business of which he (the deceased) has knowledge or the means of knowledge.” A master is not liable because an injury occurs in consequence of the nature of the work, or the position in which an employé must place himself to do it. This roof was not built for the purpose of catching snow nor for the purpose of providing a promenade for the workmen employed on the building or others, but for the purpose of protecting the building. And this window sash was put in the roof" to furnish light to the interior of the building during its construction. The roof had been upon the building for about a month, and the deceased had been employed there about four months. The condition of the roof was apparent. The dangers incident to the employment by working upon it were apparent. The fact that the snow covered all inequalities or openings in the roof was apparent. The temporary structure of the roof was apparent. And one accepting such an employment upon such a place to do such work necessarily assumed the risk of either falling from or through the roof while so engaged.' I do not think that there was any evidence from which an inference could be drawn that the deceased was free from contributory negligence. As before stated, it is a little difficult to see how he managed to go upon this skylight and fall through. He was engaged in pushing or shoveling the snow. His ordinary position would be to stand in the place from which the snow had been cleared, and throw or push the -snow away from in front of him. Ho one saw him fall, and no explanation was given of his being upon the skylight. The implement with which he was working was found with the handle broken. But it did not appear whether it was broken before or after his fall, or in consequence of the fall. There is absolutely nothing to show that the deceased exercised any care in doing the work, or that his going upon the skylight .and falling through was not the result of his own negligence or carelessness. I think, upon both grounds,—first, that there is no evidence to show that the defendant neglected any duty that he owed the deceased; and, second, that there is no evi■dence to show that the deceased was free from contributory negligence,—that the complaint should have been dismissed.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

PATTERSON, J.

-—I concur in the conclusion that this judgment must be reversed, but. not for the reasons stated in the opinion of Mr. Justice Ingraham. There was sufficient to go to the jury on the subject of negligence of the defendant in failing to furnish a safe place for men to work who were sent up to remove snow from the temporary roof, and that was the specification of the negligence attributed to the defendant. The roof was put up over a hallway. It was erected in December, at a time of the year and in a season when heavy snowstorms were to be expected. It was very slight; made of boards covered with a coat of pitch. A flat skylight, consisting of a frame with thin plates of ordinary window glass, was inserted in the roof, to afford light to stone masons in the hall belqw. Ho guard rail or barrier was put around that skylight, and it was left entirely unprotected. Its upper surface was but a few inches above the level of the roof, and under a heavy fall of snow, lying evenly on the roof of the skylight, might (and did) become entirely concealed. As an independent issue in the case, these facts were sufficient to show negligence. The time of year, the necessity for removing snow when it accumulated on the frail structure, the absence of any protection, or of anything to give notice to those' on the roof of the danger they would encounter there, were enough to show that the defendant had not discharged his duty in making reasonably safe a place at which it would become in all probability necessary for his employes to work. There was enough also in the circumstances shown to keep the case before the jury on the question of contributory negligence. No one saw the plaintiff's intestate fall through the skylight, but there was evidence to show that when he fell a witness (Kane) was working within a few feet of him, but with his face averted, and that Garety was shoveling snow. It was for the jury to say on all the proof whether the plaintiff’s intestate-was free from contributory negligence, and there is no error in the record calling for a reversal of the judgment on either-the issue of negligence or of contributory negligence, and the-damages are not excessive.

But there was a fatal error in the charge of the learned judge-to the jury on another and vital question in the case. The defendant contended that the plaintiff’s intestate assumed as incident to his employment the risk of falling through this skylight, or off the roof, when he went up to remove snow. Tlie rule of law that a servant assumes the apparent and obvious risks of his employment, as well as those he may ascertain by ordinary observation, is too well settled and understood to require the citation of authorities to support it. It was a crucial question of fact whether, in this case, the existence of the skylight and the danger of going upon the roof was known to or might have been known to the plaintiff’s intestate, and there was conflicting evidence upon that subject, on which the jury might have found either way. The point was raised very clearly and sharply by the defendant’s counsel, and the learned judge in his main charge instructed the jury “that, if the deceased did know of the existence of that window, and nevertheless undertook to work there, he assumed the risk of the apparent danger,’’ and “ it is for you, therefore,, to say whether the decedent did know of the existence of that peril.” This instruction was correct. If Garety knew of the existence of the skylight, and of the peril referred to, he assumed the risk of going to work upon that roof. But, at a subsequent stage of the trial, the learned judge expressly retracted that proper instruction, and specifically charged the jury that it was an erroneous statement of the law, and that, even if the decedent did know of the existence of the skylight, but exercised due care to avoid accident, the plaintiff might recover. That instruction was tantamount to saying that, if the decedent was free from negligence, he did not assume the risk of working at. a dangerous place, known to him to be dangerous; and put the subject definitely before the jury in such a way as to authorize them to ignore altogether-(if they found on the other issues in favor of the plaintiff) the question of the assumption by the decedent of the risks attendant upon .his working in a known place of danger. The learned judge virtually eliminated from the case the entire question of the assumption of the risk, and made that issue identical with the one relating to contributory negligence, and thus inadvertently the jury were misled on that subject; and that it must have been influential with them sufficiently appears in the record.

The judgment must be- reversed, and a new trial ordered, with costs to the appellant to abide the event.

YAF BRITFT, P. J., and 0’BRIEF, J., concur. WILLIAMS, J., concurs in result.


author: FITZSIMONS, J.

text:
    Maggie M. Stock v. John Le Boutiller et al.

    (City Court of New York, General Term.
    November 2, 1896.)
    Master and servant—Defective appliances—Evidence.
    Where plaintiff was injured by a basket which fell from a cash carrier in defendants'store, testimony that other baskets had fallen before the accident is admissible to show that defendants knew that the machine was defective.
    Appeal from trial term.
    Action by Maggie M. Stock against John Le Bou tiller and another for personal damages caused by defendants’ negligence.' There was a judgment in favor of plaintiff, and defendants* appeal.
    S. B. Robinson, for appellants ; R. J. Haire, for respondent.
   FITZSIMONS, J.

—This is an action for damages, based upon the negligence of defendants, in whose employ, as saleswoman, the plaintiff was at the time of the injuries complained of, which were caused by the falling of a basket which was-connected with a certain cash-carrying machine in the defendants’ store. It was not error for the justice to allow testimony showing that, within a reasonable time before the time in question, like baskets fell from the machine in question, because it tended to prove the dangerous condition of said machine, and that, because of the lapse of time and the frequency of such happenings, the defendants had constructive notice, at least, of such condition. The charge, we think, was very fair and impartial. If anything, it was rather in the defendants’ favor. The trial justice several times charged that defendants were only required to use reasonable care in the use of the machinery in question. The question of negligence of the defendants under the circumstances of this case was a question of fact for the jury, and the justice was right in refusing to dismiss the complaint ; likewise was the question of contributory negligence.

The judgment must be affirmed, with costs.


author: SCHUCHMAN, J.

text:
    William M. May v. Dennis J. Mentor et al.

    (City Court of New York, General Term.
    October 30, 1896.)
    Contracts—Actions—Findings .
    Findings that plaintiff, in performing work, used materials inferior to those specified in the contract, are insufflciént to support a judgment for the contract price, less the difference in value between the materials contracted for and furnished.
    Appeal from special term.
    Action by William M. May against Dennis J. Menton and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff on finding by the court, defendants appeal.
    J. J. Fitzgerald, for appellants; S. Coffin, for respondent.
   SCHUCHMAN, J.

—This is an appeal from a judgment entered after a trial before a judge on his findings made thereon. The action was commenced to foreclose a mechanic’s lien filed by the plaintiff against the defendant Dennis J. Menton, as contractor, against the property Nos. 503 to 507 West Fiftieth Street, New York City, and subsequent to the filing of said lien the defendant Menton had the same discharged by the giving of a bond pursuant to the statute in such case made ■ and provided. The plaintiff, in his complaint, alleges a verbal agreement to have been made on or about July 10, 1895, with the defendant Menton, who was the contractor with the owner, whereby the plaintiff was to furnish all the necessary materials for the roof, cornices, leader, and so forth, and the necessary labor for the fitting, etc., for the sum of $775 ; and on the trial, by his evidence, he sustained that agreement. The defendant Menton’s evidence on the trial proved that an agreement was made between him and the plaintiff for furnishing and tinning the roof, etc., as aforesaid, for the price of $775, but that the tin to be used in said work should be according to the specifications of the architect, to wit, “Merry’s Old Method ” tin. The plaintiff testified at the trial that he gave the defendant Menton an estimate on the tin mentioned in the defendant Menton’s estimate,—on the tin mentioned in the .architect’s specifications, which was “ Merry’s Old Method,” for $998; that said defendant said that estimate was too high; that he replied, “ I can make it cheaper if you will allow me to use an inferior tin ; ” that said defendant consented thereto, and the price was then reduced, and fixed upon at $775. The ■court, in its findings, finds that the said agreement was made between the parties at the agreed price of $775, and that the tin to be used was to be that stated in the specifications, to wit, “ Merry’s Old Method ” tin. The court then finds that the plaintiff used, instead of “Merry’s Old Method” tin, another .and cheaper tin, the difference in price between the two grades being $105, which said $105 the court allowed to be deducted from the contractor’s price of $775, besides $323 paid on account thereof, and gave judgment for the balance. This is an inconsistent finding, because, if the plaintiff performed his contract, as alleged in his complaint, and proved by his evidence on the trial, he is entitled to the contract price of $775, and no $105 should be deducted therefrom; and, if the plaintiff has-not used the “ Merry’s Old Method ” tin, then the plaintiff has failed to perform his contract, and cannot recover at all. As the findings now stand, the judgment based thereon could only be sustained if the findings contained an additional one, to wit, that after the contract, as found in said finding, was made, it was modified subsequently by allowing the plaintiff to use cheaper tin than “ Merry’s old Method ” tin.

There being no such finding found by the court, the judgment cannot be sustained, and must be reversed, with costs to the appellants to abide the event.

All concur.


text:
    May C. Standish v. William A. Brady.
    (City Court of New York, General Term.
    October 30, 1896.)
    Custom and usages—Terms of contract.
    Evidence of a professional custom is admissible to show the improbability of a provision of a contract for services alleged by plaintiff, and denied by defendant.
    Appeal from trial term.
    Action by May O. Standish against William A. Brady for contractual value of services rendered. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Dittenhoefer, Gerber & James, for appellant; Howe & Hummel, for respondent.
   SCHUCHMAN, J.

—This is an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury on atrial before Mr. Justice O’Dwyer, and also from an order denying a motion for a new trial. The plaintiff alleges in her complaint, and proves at the trial, a special agreement, engaging her services as an actress by the defendant, for the season from September 2, 1891, to April 5, 1895, or thereabouts, at a-salary of $30 per week. The defendant, in his answer and at the trial, denied that any such agreement was made, and especially denied the duration of the said contract. The defendant, at the trial, offered to prove a uniform custom in the profession, when an actress is engaged for an inferior character, such as the plaintiff, and the engagement is for the season, to. have a contract in writing, with the clause reserving the right to either party to terminate the contract on two weeks’ notice. The offer was objected to; the objection sustained; and the exception taken. The defendant, by the sixth request, requested the court to charge the substance of the said offer, which request was denied, and exception taken by the defendant. This brings up squarely the question whether the evidence should have been admitted or not.

The rule of law seems to be, in controversies where a special agreement is alleged to have been made on one side, and is denied on the other, that it is relevant to put in evidence any circumstances which tend to make the proposition at issue either more or less improbable; and this, not to change the contract, but as evidence of what it was, and the probability that the agreement or one of the other was made. Barney v. Fuller, 133 N. Y. 605-607; 44 S. R. 902 ; Rubino v. Scott, 118 N. Y. 662; 27 S. R. 852 ; Ostrander v. Snyder, 73 Hun, 378-382; 57 S. R. 289; Cornell v. Markham, 19 Hun, 275, at page 276. On that rule, we think that the rejected evidence should have been admitted.

The exception being an error, judgment and order must be reversed, with costs to the appellant to abide the event.

All concur.


text:
    James I. Murray v. Jacob A. Cantor.
    (City Court of New York, General Term.
    October 30, 1896.)
    Beceivers—Authority of—Discharge of employs.
    A receiver not empowered by statute or the order appointing him to discharge employés cannot give such authority to a deputy, and an employe of a corporation in the hands of a receiver who accepts an unlawful discharge by a deputy has no remedy either against the receiver or the corporation for breach of contract.
    Appeal from trial term.
    Action by James I. Murray against Jacob A. Cantor, as receiver of the Piqua Club Association for breach of contract. From a judgment m favor of defendant on a verdict directed by the court, plaintiff appeals.
    E. Van Schaick, for appellant; G. A. Baker, for respondent.
   SCHUCHMAN, J.

—This is an appeal from a judgment entered on a verdict of a jury, directed by the court. The defendant’s answer admitted the first cause of action set up in the complaint, and the court dismissed the complaint as to the second cause of action. The second cause of action was for damages for a breach of a contract, the plaintiff alleging that the Piqua Club Association had made a written contract with him. whereby he was employed as house-manager in their clubhouse, known as the “Hew Manhattan Athletic Club,” on or a^out February 9, 1895, for the period of one year, at an annual salary of $2,500; that he-was wrongfully discharged on June 13, 1895, and was thereby damaged in the sum of $1,638.91, for which damages he asked judgment against the defendant, as receiver. The evidence shows : That on June 3, 1895, the supreme court, by an order’, appointed the defendant, Jacob A. Cantor, receiver of the Piqua Club Association, a corporation, with the usual powers and duties, according to the laws of the state of Hew York and the practice of said court, and authorized said receiver “ to collect and receive the debts, demands, and other property of said corporation, and to preserve the property and proceeds of the debts and demands collected.” That said receiver appointed one Yon Biel his deputy to take charge of said property. That said receiver told Mr. Murray, the plaintiff, that he wished him to continue as house-manager ; that he did not want any change made at all; and that Mr. Murray should be subordinate to Mr. Yon Biel, and was subject to Mr. Yon Biel’s orders as deputy. And that on June 13, 1895, said Yon Biel told Mr. Murray, the plaintiff: “Leave the house. I discharge you. You are discharged.” And that thereupon said plaintiff left the service.

The receiver had no powers except such as are conferred by the order of his appointment, by statutory provisions, and the course and practice of the court, and cannot appoint a deputy without special order of the court. 20 Am. & Eng. Enc. Law, 111-113 ; Corey v. Long, 12 Abb. Prac. (N. S.) 427; Dickerson v. Van Tine, 1 Sandf. 724; Verplanck v. Insurance Co., 2 Paige, 452. The receiver’s powers were defined by the order of his appointment. Said powers thereby conferred are identical to the ones specified in section 1788 of the Code of Civil Procedure. The receiver is a mere custodian and manager of the property, under the direction of the court during the pendency of the action. Herring v. Railroad Co., 105 N. Y. 340; 7 S. R. 547. The receiver was not liable upon the contract of the plaintiff with the Piqua Club, and had no power to break it. Having none, he could not delegate any such power to his deputy. The deputy, therefore, could not discharge the plaintiff; and if the plaintiff accepted the unlawful discharge of the unauthorized deputy, and left the services of the club, although he may have acted in ignorance of his rights, he broke the contract himself, and certainly has no remedy against the receiver.

The judgment is right, and is affirmed, with costs.

All concur.


text:
    Henry P. Hildreth v. Henry Seeback.
    (City Court of New York, General Term.
    October 30, 1896.)
    Supplementary proceedings—Jurisdiction—Service oe summons.
    The provision that supplementary proceedings can be had only where-the judgment was rendered on appearance by, or personal service on, a defendant (Code Civ. Proc. § 2458) is jurisdictional; and a defendant who submitted to an examination in such a proceeding was not thereby precluded from afterwards having the order in the proceeding set aside for want of jurisdiction where there was a substituted service, and no appearance, in the original case.
    Appeal from trial term.
    Proceeding by Henry P. Hildreth against Henry Seebaclc to examine the defendant, a judgment debtor, after return of execution. From an order denying a motion to dismiss the proceeding, defendant appeals.
    J. B. Marshall, for appellant; G. R. Hamburger, for respondent.
   SCHUCHMAN, J.

—This is an appeal from an order denying the motion of the above-named defendant and judgment debtor to dismiss proceedings supplementary to execution. Thé judgment debtor was served with an order in supplementary proceedings, dated May 16, 1896, returnable May 20, 1896. On that day he appeared, was sworn, and the examination started, and the.same adjourned to May 23, 1896, when he failed to appear. Subsequently the judgment debtor made a motion why the said order of May 16, 1896, should not be vacated and set aside on the ground that the court had no jurisdiction of the subject-matter, and that the order was void for want of jurisdiction. Said motion was the defendant’s proper remedy. See section 2433, subd. 1, of the Code. The judgment on which the supplementary proceedings were based was rendered in 1887. The motion papers show that the defendant was served by substituted service of the summons, and that he did not make an appearance in said action in which judgment was entered. Substituted service is, by the Code, made equivalent to service by publication, but not to personal -service. Clare v. Loclcard, 21 Abb. N. C. 173. Section 2458 of the Code of Civil Procedure states that, in order to entitle a judgment creditor to maintain supplementary proceedings, the judgment must have been rendered upon the judgment debtor’s appearance or personal service of the summons upon him.. These requirements are jurisdictional, and relate to the subject-matter of the jurisdiction. Those requirements not existing in this case, the order was a nullity. Jurisdiction could not be conferred upon the court, even by consent, and not by defendant appearing and submitting to examination, because the rule of law is well established that an order or judgment is wholly void for want of jurisdiction if the judge or court has no jurisdiction of the subject-matter of the proceedings on which an order is made. In such cases even consent cannot give jurisdiction. Viburt v. Frost, 43 Abb: Prac. 119 ; Dudley v. Mayhew, 3 N. Y..12; Phelps v. Baker, 41 How. Prac. 237.

Order appealed from reversed, with costs, and motion to dismiss supplementary proceedings granted, without costs, there having been no costs given in the order appealed from.

All concur.


text:
    Samuel Hyman v. American Electric Forge Co. et al.

    (City Court of New York, General Term.
    October 30, 1896.)
    Bills and notes—Rights of bona fide holders.
    A negotiable note given by a corporation to its president to discount, and by him fraudulently transferred before maturity to an innocent purchaser, for less than its face, and by the purchaser used in payment of a debt, is enforceable by the last assignee against the maker to the extent of the price paid by his assignor.
    Appeal from trial term.
    Action by Samuel Hyman against the American Electric Forge Company, impleaded, on a promissory note. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.
    L. Wertheimer, for appellant; F. Griffin, for respondent.
   SCHUCHMAN, J.

—This is an appeal from a judgment entered in favor of the defendant, pursuant to the direction of the court on the trial. The action was brought on a promissory note of $1,000, dated Flew York, September 30, 1895, payable to the order of George D. Burton four months after the date thereof, and was made by the defendant, a corporation organized under the laws of the state of Flew Jersey. The defense alleges a diversion of said note, averring that it was given to the said George D. Burton, who was the president of the defendant, for the purpose of having it discounted. The evidence shows that the payee, George D. Burton, delivered and endorsed over the said note to one David Pilfer, and that David Pilfer advanced to him $200 and $250, making a total of $450, before maturity of said note, and without any knowledge or notice of the real purpose for which said note was issued and delivered to said Burton. The evidence further shows that said David Pilfer delivered and indorsed over said note to the plaintiff in this action for an antecedent debt. The evidence thus clearly shows that .David Pilfer, without knowledge or notice of- the purpose for which said note was made and issued, parted with value, to wit, $450, upon said note; that, therefore, to that extent, he was a bona fide holder for value, and, in case of an action against the maker of that, note, he had a clear right to recover that sum. Pfifer could transfer to the plaintiff the same right, title, and interest that he had in and to this note, and no more; and the plaintiff in this action succeeded to his title, and could take no less of a-title to it. It is true that the plaintiff in this action is not, technically speaking, a bona fide holder for value; but taking said note, to the extent of §450, from said Pfifer in extinguishment of the indebtedness which was owed by said Pfifer, was a good consideration for the transfer of that note to him, and entitled him to recover from the maker of that note the same amount which said Pfifer could have recovered.

The true rule of law is that a party will be protected as holder of negotiable paper, although fraudulently transferred, when he has received it before maturity without notice of the fraud, and in good faith, and parted with something of value for it at the time of its transfer.” „ Coddington v. Bay, 20 Johns. 637; Bank v. Watson, 42 N. Y. 490 ; Bank v. Noxon, 45 N. Y. 762; Moore v. Ryder, 65 N. Y. 438.

We think that the plaintiff was entitled to recover from the defendant .company the sum of $450, and that, therefore, the direction of the court to the jury to find a'verdict for the defendant was erroneous; and the judgment should therefore be reversed, with costs to the appellant to abide the event of the action.

All concur. „


author: SCHUCHMAR, J.

text:
    Charles Seelig v. Metropolitan St. Ry. Co.
    (City Court of New York, General Term.
    October 30, 1896.)
    1. Carriers—Negligence of street-car driver.
    It is negligence for a street-car driver to run the car at an unusual rate of speed in approaching a switch which he knows to be dangerous.
    2. Same—Contributory negligence.
    It is not negligence per se for a passenger to ride on'the front platform of a street car.
    Appeal from trial term.
    Action by Charles Seelig against the Metropolitan Street-Railway Company to recover damages for personal injuries. Prom a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant-appeals.
    H. A. Rooinson, for appellant; P. Carpenter, for respondent.
   SCHUCHMAR, J.

—This is an appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury for $625, and. also from an order denying the defendant’s motion for a new trial, made upon the minutes. This action was brought to recover damages for an injury to the plaintiff’s person, caused by the negligence of the defendant railroad company, while he was a passenger on one of their cars. The evidence shows that on the evening of December 11, 1894, the plaintiff boarded one of the defendant’s cars at the corner of Spring Street and the Bowery, 'which car was going through Spring Street towards Broadway. The plaintiff got upon the rear of the car, having a cigar in his hand. The conductor said to him: “Ho smoking at the back. You’ll have to go to the front platform. Smoke on the front platform of the car,”— whereupon plaintiff went through the car on to the front platform, and. there paid his fare. Plaintiff stood on the right-hand side of the front platform. He had thrown his cigar away, and with both hands held on to the rail of the car, back of Mm. Between Mott and Mulberry streets the plaintiff was thrown from the car, onto his head and shoulder, and his leg was thrown under him, and he was otherwise injured. The car was running from east to west on the uptown track, and there was another track parallel with this, on which the cars were running from west to east; and at or about the place of accident there was a switch crossing between the two tracks, and connecting the same so that a car could run from one track over to the other. The evidence further shows that the car was going at a very quick rate of speed, and that the driver did not slacken his speed on approaching the switch; that it was going down grade faster than the usual speed of a street car; that it did reach the switch where the accident happened; that the switch was open, and ivhen the car reached the switch, while the horses were pulling the car along the up-bound track, the car ran into the open switch, turned southward, and ran off the track, and was standing across the ■ street, thereby causing an unusual and powerful jerk, in consequence of which the plaintiff ivas thrown off. And the evidence further shows that the car-driver remarked to the plaintiff “ that he knew that switch would some day get him into trouble.” The car-driver lost his lines, and ‘if he had not caught the brake he would have gone off the car too. All this shows,, and from it it can be reasonably inferred, that the jerk was an extraordinary one, There was in this case a conflict of evidence between the witnesses. Por instance, one witness testified that the car was thrown off the regular track by the switch, and had to be pulled back. Another witness testified that the car had not reached the switch, and that the switch had nothing to do with the accident. But the contention between the parties was fairly and squarely submitted to the jury by the trial judge, and the jury having found, upon all the conflict of evidence, and the evidence itself, in favor of the plaintiff, there is only for us, under the rules of law, to consider whether there was evidence enough in the case, direct or inferential, which will sustain the verdict of the jury for the plaintiff. The evidence which we have pointed out above leads us to the conclusion that the driver of the car, who ran it at an unusual rate of speed in approaching the switch, which he knew to be dangerous, should have been more than ordinarily careful and cautious, and this the evidence does not show. The driver’s failure to do so constituted sufficient negligence to sustain the verdict. There is no doubt that the car striking the open switch at an unusual rate of speed caused the sudden and forcible jerk which threw plaintiff off the car.

Having thus disposed of the negligence of the defendants, it .only remains to consider the negligence of the plaintiff contributing to the accident. The fact that the plaintiff was riding as a passenger on the front platform of the car is not per se negligence. .Vail v. Railroad Co., 147 N. Y. 377; 69 S. R. 417; Graham v. Railroad Co., 149 N. Y. 336. We have examined all the cases cited by the attorneys on their respective briefs, and it seems to us that the case of Hastings v. Railroad Co., 7 App. Div. 312, is conclusive on this appeal. •

Judgment is affirmed, with costs.

All concur.


text:
    National Press Intelligence Co. v. Charles W. Brooke.
    (City Court of New York, General Term.
    October 30, 1896.)
    Arrest—Privilege of attorneys.
    2 Rev. St. p. 290, § 86, providing that an attorney is not “ exempt from arrest during the sitting of the court,” unless he is employed in a cause to be heard thereat, restricts to arrest the common-law exemptions from arrest or suit, so that a service of an order in a supplementary proceeding on an attorney engaged in court is valid.
    Appeal from special term. "
    Supplementary proceedings by the National Press Intelligence Company against Charles W. Brooke. From an order setting aside the service of the order in the proceedings, the judgment creditor appeals.
    F. E. Hipple, for appellant ; C. L. Brooke, for respondent.
   SCHUCHMAN, J.

—This is an appeal from an order setting aside the service of an order in supplementary proceedings on the ground of its alleged irregularity, in that it was served on the defendant, who is an attorney, while in court. The affidavit on which said order was granted alleges that the defendant, the judgment debtor, was in the supreme court, part 1, outlie 11th day of August, 1886, when said order in supplementary proceedings was served upon him; that he was then in actual attendance in said court, in his capacity as attorney, to answer to and argue a motion there and then upon the calendar of such court, and pending. This, in our opinion, sufficiently establishes the fact that the said judgment debtor was then actually engaged in the discharge of his professional duties before the court. An attorney at law is an officer in a court of justice who is employed by a party in a cause to manage the same for him. 1 Am. & Eng. Enc. Law, 943. At common law, and prior to the Revised Statutes, an attorney was exempted from arrest or being sued during the actual sitting. of the court of which he was an officer, if he was employed in some cause pending, and then to be heard in such court, “ eundo, morando, et redeundo,” which means, “ going, remaining, and returning.” Gilbert v. Yanderpool, 15 Johns. 242 ; Yan Alstyne, v. Dearborn, 2 Wend. 586. But the Revised Statutes (part 3, c. 3, tit. 2, § 86, vol. 2, p. 290), changed the law so as to restrict the privilege so that they were “ exempt from arrest during the sitting of the court of which he was an officer,” if he was “ employed in some cause pending and then to be heard in such court.” While I cannot too strongly condemn the propriety of serving papers on an attorney in open court, I think such service is legal. The reason of the exemption prior to the Revised Statutes was not to take away an attorney while in court in discharge of his duty, by a ca. sa., by which a suit was then instituted.” Under the present procedure a service of a summons or order would not interfere with such a discharge of his duties. The reason for the exemption having ceased to exist, the maxim, Oessante ratione, cessat lex,” applies.

The order appealed from is therefore reversed, with costs, and the motion below is denied, without costs, and defendant is directed to attend and be examined pursuant to the order.

All concur.


author: SCHUCHIMAN, J.

text:
    Adolph Bernstein v. Samuel Hilpoltsteiner.
    (City Court of New York, General Term.
    October 30, 1896.)
    Divisible contract—Successive actions.
    A contract stipulating for monthly delivery of goods and monthly payments is divisible, and a judgment for accrued payments is not a bar to the recovery of payments maturing after such judgment.
    • Appeal from trial term.
    Action by Adolph Bernstein against Samuel Hilpoltsteiner for damages for breach of contract. From a judgment on a verdict in favor of plaintiff, directed by the court, defendant appeals.
    Hays & Greenbaum, for appellant; J. Krone, for respondent.
   SCHUCHIMAN, J.

—This is an appeal from a judgment entered on a verdict directed by the court in favor of the plaintiff for the sum of $341.04. The action was brought to .recover the sum of $240 as damages for the breach of a stipulation in a contract on the part of the defendant to receive the amount of 300 dozen clasps a .month from January 1, 1894, to April 1, 1895. The contract made between the plaintiff and defendant (being Exhibit A in the case), bearing date November 22, 1890, provides that the defendant agrees to take from the plaintiff 100 of such clasps in each and every month for 10 years from and after January 2, 1891, and to pay the plaintiff the cost price of such clasps, and also an additional sum of five cents per dozen for each and every dozen thereof. It further provides “that payment due the plaintiff shall be made on the 1st day of each and every month during .the existence of this agreement.” Said agreement was modified by a memorandum in writing dated April 30,1891 (being Exhibit B in the case), in that the defendant agreed to purchase from the. plaintiff, and the plaintiff agreed to sell to the defendant, 300 dozen clasps in each and every month from the 1st of August, 1891. In other respects the former agreement wras to remain in full force and effect, and be binding upon the contracting parties. On or about January 11, 1895, the plaintiff herein brought an: action against the defendant herein, in the city court of New York, on the contract as modified above, to recover under said agreement the amount of 300 dozen clasps a month from August 1, 1891, to January 1, 1894, amounting to $435, in which action, on a trial before a jury, a judgment was recovered about March 9, 1895, against the defendant for the sum of $561.10, which the defendant paid. This latter judgment was pleaded by the defendant as a bar to the recovery in this action, the defendant, maintaining that the contract involved was an entire contract, and the recovery in part having been had once for a breach thereof, no further recovery could be had in this action. This leads us to the investigation whether the said contract was an entire or divisible one. It is clearly a divisible one, because the contract contains stipulations to be performed at different times, to wit, monthly. , Monthly deliveries of clasj)s were to be made, and payment therefor was to be made monthly. The ground of action is the stipulation, which is in the nature of a several contract. The rule that the plea of bar applies when several demands or stipulations of one contract have accrued, and one is sued on, and judgment recovered, that that is a bar against this claim, does not apply in this case,' because the cause of action, the subject in this case, had not accrued when the former action, for which judgment had been recovered, was commenced. Jex v. Jacob, 19 Hun, 105. The said judgment, therefore, is no bar to this action.

The third paragraph of the complaint alleges : “ That the plaintiff herein has fully performed all the conditions in the aforesaid agreement on his part, and that the defendant has declined to receive the amount of three hundred clasps a month from January 1, 1894, to April 1, 1895.” The only evidence on the trial relating to any performance of said contract on plaintiff’s part and refusal to perform on the defendant’s part is the testimony of Bernstein, at folio 62, where he testified as follows: “ On February 9, 1891,1 had a conversation with the defendant. I brought 100 gross of clasps to him, but he did not want to accept them. He simply said, Don’t send me any clasps until I send for them.’ ” Thus it does appear that the testimony shows an offer to perform by the plaintiff, and a refusal to accept by the defendant, on February 9, 1891, while the contract for the breach of which this suit is brought did not go into effect until August 1, 1891. No offer by the plaintiff or refusal by the defendant to perform the contract between January 1, 1894, and April 1, 1895, the period for which damages are sought to be recovered in this action, were shown on the trial. There was, therefore, no breach of the said contract proven, and defendant’s motion to dismiss should have been granted.

Judgment reversed, with costs to the appellant to abide the event.

All, concur.


author: VAN WYCK, C. J.

text:
    Bebecca Saltzman v. John Northrop.
    (City Court of New York, General Term.
    October 30, 1896.)
    1. Suit in forma pauperis—When allowed—Affidavits.
    Plaintiff, in an action for personal injuries, may not prosecute as a poor person, under Code Civ. Proc. § 460, permitting him to do so if he has a cause of action, where the cause of action was stated in general terms only, and on information and belief, with no sources of information and belief being given; and defendant introduced affidavits of witnesses of the accident out of which the alleged cause of action arose, positively averring facts showing not only that defendant was not negligent, but that plaintiff was guilty of contributory negligence, and plaintiff failed to reply to those affidavits.
    3. Same—Leave to file affidavits in rebuttal.
    Where an applicant for leave to prosecute as a poor person under Code Civ. Proc. § 460, failed to reply, on the application at special term, to affidavits disproving his cause of action, leave will be granted on appeal to the general term to file affidavits in rebuttal.
    Appeal from special term.
    Action by Bebecca Saltzman against John Northrop. From an order permitting the infant plaintiff to prosecute as a poor person, defendant appeals.
    M. R. Lawrence, for appellant; Louis Steckler, for respondent.
   VAN WYCK, C. J.

—The application by plaintiff for leave to prosecute as poor person was made under sections 458-460 •of the Code, which permits such person who alleges that he has a cause against another, to apply for such leave by a petition verified by his affidavit, or, if ah infant under 14, then by his guardian’s affidavit. Section, 460 provides that the court so petitioned, “ if satisfied of the truth of the facts alleged, and that the applicant has a good cause of action, may, by order, admit him to prosecute as a poor person.” The plaintiff’s only proof of the truth of the facts alleged, and that she had a good cause of action, was by the complaint and petition, in both of which the cause of action was set forth in general terms, and upon information and belief, with no sources of information or grounds of belief stated, and both of which were-verified by the affidavit of her guardian, and by the unverified certificate of her counsel. In opposition to plaintiff’s application, the defendant submitted the affidavits, made upon the affiant’s knowledge, of two eye-witnesses of the accident out of which plaintiff’s cause of action was alleged to have arisen; and for some unexplained reason the plaintiff failed to make any reply whatever to these affidavits, and so left the truth of the positive .averments of facts contained therein unchallenged, except, so far as they might be deemed controverted by the allegations upon information of the complaint and petition. These affidavits, if stating the true facts of the accident, demonstrated not only that the defendant’s driver was not guilty of negligence, but that plaintiff’s alleged injuries were caused solely by her own negligence in deliberately running under the wagon "to recover a lost ball with which she and a boy were playing. These unchallenged and uncontradicted averments should not have been disregarded upon such an application, made under the provision of that section of the Code, and such was the rule laid down in this court in Beyer v. Clark (Super. N. Y.), 22 N. Y. Supp. 540, in which the plaintiff was given two days within which to submit affidavits in opposition to those of defendant, and of which permission plaintiff availed herself. However, her application was denied, and she left this court to begin her action anew in the superior court, where she secured a verdict, which, however, was set aside at the general term of that court, although the defendant had not taken an exception on the trial, upon the sole ground that her testimony was incredible. Beyer v. Clark (Super. N. Y.), 28 N. Y. Supp. 655. Although the plaintiff obtaining the order appealed from neglected, on the application at special term, to submit affidavits in opposition to those made on defendant’s behalf, nevertheless she would have been granted leave there if requested, and will be here, to make reply to the affidavits of defendant. Her proof below shows that she is a poor person, and, if she has a good cause of action, she-must have an opportunity to satisfy the court that she has, in order that she may be accorded the right to sue as a poor person vouchsafed to such person under the Code; and to that end the order appealed from will be reversed, without costs, with leave to plaintiff to renew her motion upon same papers, and such other affidavits as she may be advised.


text:
    Pinkus Nathan v. Genron Iron-wheel Co.
    (City Court of New York, General Term.
    October 30, 1896.)
    Landlord and tenant—Abandonment by tenant—Rent.
    A landlord who enters premises abandoned by the tenant, andrelets, under a clause in the lease reserving the “right to enter,” after a breach of covenant, “ and to relet the premises as the agent of said lessee, and to receive the rent therefor, applying the same to the payment of rent due,” can recover, as damages for breach of contract, the deficit between the rent reserved on the old and that received on the new lease.
    Appeal from trial term.
    Action by Pinkus Nathan against Gendron Iron-Wheel Company for damages for breach of contract. From a judgment, entered on a verdict in favor of plaintiff, directed by the court,, defendants appeal.
    J. D. Townsend, for appellants; T. C. Campbell, for respondent.
   SCHUCHMAN, J.

—This was an appeal from a judgment entered in favor of the plaintiff, by the direction of the court on the trial. The jfiaintiif, in his complaint, set up a cause of action for two months’ rent, to wit, February and March, 1894, which he claims were due under a written lease given to the defendants for the term of 10 years, commencing April 1, 1893, and ending April 1, 1903. The defendants, in their answer, set up that on January 31, 1894, they abandoned the premises, and that on or about February 15,1894, the plaintiff relet the premises to one L. Abraham for a term of years. The proofs on the trial show that two written leases, the one made to the defendants, and the other made to said L. Abraham, were offered, and, without objection, accepted in evidence. The lease to the defendants contained the following clause (subdivision 10):

And the lessee hereby agrees to pay the said yearly rent as above stipulated, without any deduction, fraud or delay; it being understood that in case of"non-payment of the rent at the times and in the manner above provided, or if default shall he made in any of the covenants or agreements herein contained, the said lessor and his legal representatives shall have the right to enter the said premises, either by process of law or otherAvise, and to relet the same premises, as the agent of the said lessee, and to receive the rent therefor, applying the same to the payment of the rent due by-these presents, and holding the lessee and its legal representatives liable for any deficiency, and for any damage that may be caused by or through such entry or reletting.”

The lease made to L. Abraham bears date February 10,1894, and provides for a term of fiAre years from April 1,1894. No-fault Avas found at the trial by the defendants Avith the cause of action as brought, and, the evidence containing all the necessary facts to base the judgment on, no interference therewith can be had on this appeal by reason of the form of action. The plaintiff was entitled to recover damages for the breach of the -covenants in the lease. These damages were as much as the rent stipulated in the lease. Neither one of the attorneys herein has cited any authorities in support of their respective contentions. Therefore, we simply state our views.

The defendants were liable for the term of 10 years to pay Tent under the covenant contained in their lease. When the defendants abandoned the premises, the plaintiff had a right to re-enter, and, under the tenth clause contained in the lease, to relet the premises, at the best terms he could secure, and he had a right to select a good and proper tenant. The evidence .adduced at the trial shows that the landlord did the best he •could in securing a new tenant. The evidence offered by the defendants on the trial was insufficient to raise any question of fact to be submitted to the jury. The burden of proof to do so was on him. The court therefore was right in refusing to submit the question to the jury, as requested by the defendants’ attorneys, and the plaintiff was entitled to a direction by the •court. Hall v. Gould, 13 N. Y. 127.

Judgment affirmed, with costs.

All concur.