author: Allen, J.

text:
    Charles V. Austin, Adm’r, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Negligence—Railroad—Failure to ring bell at crossing.
    Plaintiff’s intestate was struck by one of defendant’s engines at a crossing and killed. The judge charged the jury that “ if the bell was not rung as required by statute, the failure to ring it would be a negligent act on the part of the railroad company.” Held, error; that as § 7 of chap. 282, Laws 1854, requiring the bell to be rung at a specified distance had been repealed at the time of the trial, the omission to ring the bell was not negligence per se, and whether the defendant’s train approached the crossing with proper care should have been submitted to the jury.
    3. Same.
    The court also erred in leaving to the jury the specific questions as to whether the flagman was negligent in not warning the deceased, and whether the engineer and fireman were negligent in not seeing him. The question should have been whether under the actual circumstances of the case the company exercised the care that the law required and whether, if it did not, its neglect caused the injury.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial in an action brought for damages for injuries causing death.

      Tracy, McFarland, Boardman & Platt, for appl’t; Charles N. Codding, for resp’t
   Allen, J.

—The plaintiff’s intestate was struck by one of the defendant’s locomotives and killed, at the John street crossing, on the afternoon of November 10, 1888. No whistle was sounded as the engine approached the crossing, and the testimony as to the ringing of the bell, whether it was rung at all, or if rung, between what points, was conflicting. The negligence claimed is that the deceased was not warned by the defendant of the approach of its train either by bell or whistle.

After examining the case, we are of the opinion that there was sufficient evidence to take to the jury the questions of negligence as questions of fact, and that the action of the trial judge in refusing a nonsuit was correct. The judgment, however, must be reversed and a new trial ordered, by reason of an error of the trial court in submitting the case to the jury, which will be point-, ed out. The court, in the charge, after stating that the negligence claimed was a failure to warn the deceased of the approach of the train by a whistle or a bell, says: “ An examination of the law shows us what the duty of a railroad company is with respect to the ringing of the bell. It is prescribed that a bell should be placed on each locomotive engine run on any railroad, and rung at a distance of at least eighty rods from the place where the railroad shall cross any public road or street on the same level of the railroad, and be kept ringing until it shall have crossed the .said road or street; or a steam whistle shall be attached to each locomotive engine of any railroad and sounded at a distance of at least eighty roads from the place where the railroad shall cross any such public road or street upon the same level of the railroad, except in cities, and be sounded at intervals until it shall have crossed such road or street. If the bell was not rung, as required by statute, the failure to ring it would be a negligent act on the part of the railroad company, and the plaintiff’s claim is that the evidence establishes that it was not rung as required by the statute, .and, therefore, that the plaintiff was negligent in that respect.”

It thus appears that the question of the defendant’s negligence was entirely taken from the jury by charging that if the jury found that the bell was not rung, then the defendant had violated the statute and was negligent in law. The statute referred to by the trial court was § 7 of jfbhapter 282, Laws 1854. That section required railroad companies to ring the bell of the engine or blow the whistle, at eighty rods from the crossing at a grade or a track of public road, and made the company responsible for damages resulting from that omission, and made me engineer, who should omit the required signal, guilty of .a misdemeanor.

This statute, except the last provision as to the penal provision ■against the engineer, was repealed by the general repealing act of 1886, chap. 593, Laws 1886, p. 838. Since the passage of this repealing act, there has been no statutory duty upon railroad companies to give the specified signals at the required distance, and so it appears that when the accident to the plaintiff’s intestate occurred, in November, 1888*. the railroad company was charged with no statutory obligation to ring the bell at a crossing. The court, however, submitted the case to the jury upon the assumption that the statute referred to was still in existence. Neither the court nor the counsel seem to have been aware of the repeal of the statute. No exception appears to have been taken to this part of the charge, but the appellant claims that his exception at folio 136 of the case is sufficient to raise the question of the correctness of the judge’s charge.

It is not necessary to discuss this matter, for the reason that a formal exception is not indispensable to authorize us to review our own judgment, for, if there is a well-founded reason to believe that the verdict has been rendered upon an improper instruction of the court, or that justice has not been done, we may reverse the judgment, although no sufficient exception has been taken at the trial. Maier v. Homan, 4 Daly, 168 ; Cumber v. Schoenfeld, 34 N. Y. State Rep., 770 ; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506.

We are of the opinion that the error above referred to requires .a new trial in this case. In the absence of the statute, the omission to ring the bell was not negligence per se, and whether the defendant’s train approached the crossing with proper care should have been submitted to the jury. Lewis v. N. Y., L. E. & W. R. R., 26 N. E. Rep., 358.

It also appears to us that the court erred in leaving to the jury, at the request of the plaintiff, the questions:

First. Was the flagman negligent in not warning the deceased sooner ?

Second. Were the engineer and fireman negligent in not seeing the deceased ?

The question to be submitted to the jury was whether, under the actual circumstances of the case, the company exercised the care that the law required of it, and whether, if it did not, the neglect of this care caused the injury to the plaintiff’s intestate?

Whether there is negligence depends upon the degree of care required to be given in each particular case, irrespective of any particular mode. The charging of these requests was excepted to, and seems to be in violation of the rule laid down in Grippen v. The N. Y. C. R. R. Co., 40 N. Y., 34 ; Houghkirk v. R. R. Co., 92 id., 219 ; Dyer v. Erie R. R. Co., 71 id., 228 ; Semel v. R. R. Co., 9 Daly, 321.

The judgment and order should be reversed and a new trial ordered, with costs of appeal to abide event.

- Allen, P. J., and Bischoff, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Moses Weiss, Resp’t, v. Jacob Strauss, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Evidence—Conflict—Beview.
    Where there is a conflict of evidence, the court will not interfere with the judgment of the justice, unless the evidence he of such conflicting character as to clearly indicate that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected to deliberate upon the whole testimony.
    Appeal from a judgment of the ninth district court, rendered upon a trial before a justice without a jury.

      I. N. Falk, for app’lt; L. Levene, for resp’t.
   Allen, J.

—The issues to be determined were purely of fact, as to which the evidence was conflicting. Fo error of law is charged, and the reversal is sought upon the facts.

We have often before held in this court, that, when there is a conflict of evidence we will not interfere with the judgment of the justice unless the evidence be of such conflicting character as to clearly indicate that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected to deliberate upon the whole testimony. Dempsey v. Paige, 4 E. D. Smith, 219. An examination of the evidence in this case does not lead us to such a conclusion. There is no claim that the work sued for was not done by the plaintiff. The contention is that this work was included in a former contract for work upon the same property. The receipted bill for the former work was put in evidence, and no item of that work is specified in the bill for work-upon which this action is brought The plaintiff testified to doing the work for which he seeks to recover in this action, and its. value, and to having been requested by the defendant to do it, and to defendant’s promise to pay for it Plaintiff’s testimony is-confirmed by the witness Alexander, who swears that he heard the defendant tell the plaintiff to do all the extra work and he would pay him for it.

The justice, if he believed the plaintiff and his witness, as he undoubtedly did, was right in rendering the judgment appealed from.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.


author: Pryor, J.

text:
    Mary DeSoucey, Resp’t, v. The Manhattan Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Carriers—Elevated railway—Negligence—Train starting with a JERK.
    Plaintiff entered an elevated railway car, and while lingering in her choice of a seat, the train started with a jerk and threw her down, injuring her severely. The evidence showed that she lost her balance by the starting of the train while in the motion of sitting down; that she unnecessarily delayed seating herself; that there was no violent jerk, and.that it was impossible to start a train without some degree of a jerk. Held, that the proof was inadequate to any reasonable inference of negligence on the defendant’s part, and that the court erred in denying the motion to dismiss the complaint.
    3 Same—Passengers—Contributory negligence.
    Upon entering an elevated railway train, a passenger is hound to use due diligence in seating himself, and if he does not, and is thrown down by the jerk necessarily made in starting the train, and is injured, he is guilty of contributory negligence, and cannot recover damages for the injury sustained.
    3. Same—Evidence—Res gestae.
    The declaration of one of the guards of an elevated railway train that ‘ you must be injured,” made immediately after the fall of plaintiff, is a mere statement of opinion, not part of the res gestae, and not admissible in evidence.
    4. Evidence—Medical testimony.
    The testimony of a medical witness as to the “probable” future “ result” of an injury, and who declined to say that such result would ensue with “reasonable certainty,” but confessed that “there was a certain amount of uncertainty about it,” was incompetent.
    Appeal from judgment for plaintiff, and from an order denying motion for a new trial.
    Action by passenger for damages from an injury charged to have been caused by the negligence of the defendant. The alleged negligence consisted in starting the train with a jerk whereby plaintiff was thrown down and hurt. Plaintiff, when she fell, was in the car, and near the third seat from the entrance.

      Anson Beebe Stewart, for resp’t; Joseph H. Adams, for app'lt.
   Pryor, J.

—Upon examination off the evidence the conclusion is irresistible that no case was made for the consideration of the jury.

That a party alleging negligence must prove it, and prove it, not by a scintilla of evidence merely, but by evidence sufficient to authorize a reasonable inference of negligence, is a well settled principle in the jurisprudence of this state. And that failure to furnish such evidence requires a dismissal of the complaint, is an equally incontestable rule of law. Conlin v. Rodgers, herewith decided. Ante, 51.

Now, what evidence of negligence on defendant’s part does the case exhibit? Not that the train started too soon, for the unchallenged proof is, that the plaintiff was safely in the car, some distance from the door, and leisurely looking around for a seat. The only circumstance from which an inference of defendant’s negligence may be deduced is, that the train started with a jerk sufficiently violent to throw the plaintiff down. But how violent? The plaintiff says, “ so violent that I was thrown with full force on my face.” Still the degree of violence is in doubt. The statement that the jerk was so violent as to throw the plaintiff down, is merely saying that the jerk threw her down; and the intensity of the violence yet remains unascertained. A jerk sufficient to throw down a person in a particular posture, or of feeble and tottering step, might not effect the equilibrium of another in a different condition and attitude.

The evidence fails to show that the jerk disturbed the poise of any other passenger. It may be that the plaintiff was of little strength and firmness; or at the moment, nave been in an attitude of unstable equilibrium, and so, easily topple over by the slightest shake. Indeed, the uncontradicted evidence is, that “she lost her balance by the starting of the car, while in the motion of sitting down.” Another witness testified that “there was no violent jerk.” How, then, upon the evidence could the jury reasonably find that the jerk was so violent as to authorize.an inference' of defendant’s negligence in starting the train ?

In Hayes v. R. R. Co., 97 N. Y., 259, the car “gave a sudden movement,” whereby the plaintiff was thrown down and injured. But the court, reiterating the rule that a plaintiff must prove negligence, and that such proof is not given when it is equally consistent with negligence and non-negligence, reversed a judgment, for the plaintiff, saying (p. 262), “ it is not shown that the driver started his horses in an unusual or negligent manner. That the-car gave a sudden movement,” a jerk, “is entirely consistent with the supposition that, having been still, the horses were started in a careful and prudent manner; for a car loaded with passengers must necessarily require a strong pull to overcome its resisting inertia.” So here, in the nature of the thing, a strong 'traction by the engine, involving necessarily some jerk, was inevitable in starting the train.

It cannot be pretended that an elevated railway train, designed especially for rapid transit, must not start from a station until all' the passengers are seated. Such a regulation would be incompatible with that celerity, without accomplishing which, an elevated railroad would have no reason to exist. But here the evidence-is that, when the train started, the plaintiff was lingering in the choice of her seat.

Our conclusion is, that the proof was altogether inadequate to-any reasonable inference of negligence on the defendant’s part, and that the court erred in denying the motion to dismiss the complaint

Assuming, however, that the evidence was enough to warrant the jury in finding the fact'of the defendant’s negligence, the plaintiff’s case was still incomplete for lack of proof of her own care and diligence. That she was bound to negative the fact of contributory negligence on her part, or else be nonsuited, is familiar law. Conlin v. Rodgers, supra. Her narrative of the occurrence is simply that when she got inside, about opposite the third seat from the door, “the car jerked so violently that she was thrown with full force on her face and her mouth struck the ground.” But a disinterested witness testified that “ this lady got her fall through her own carelessness. When she came in to take her seat, instead of sitting down, she kept on her feet and was turning around until the car started, looking around like as she was looking for somebody and not looking where she seated herself.” In rebuttal the plaintiff denied something of this witness’ testimony, but the part quoted she did not question or qualify. Hpon the uncontradicted evidence, therefore the reasonable inference is, not that the plaintiff was in the exercise of due care, but rather that her own negligence contributed to her injury. Tolman v. R. R. Co., 98 N. Y., 198 ; Hale v. Smith, 78 id., 480 ; Hart v. Bridge Co., 84 id., 57 ; Muhr v. Mayor, 15 Daly, 12 ; 16 N. Y. State Rep., 688 ; Cordell v. R. R. Co., 75 N. Y., 330.

Besides the exceptions to the refusal to dismiss the complaint, fhe appellant urges, for reversal of the judgment, alleged errors in the admission of evidence.

The court allowed proof of the declaration “ you must be injured ” made to the plaintiff by one of defendant’s guards immediately after her fall and while he was lifting her on her seat The competency of such evidence depends not upon the proximity in time between the accident and the statement, but upon whether the statement be of the res gestee. Such was not the declaration in question. Luby v. R. R. Co., 17 N. Y., 131, 133 ; Waldele v. R. R. Co., 95 id., 274, 278. But for another reason the evidence was clearly incompetent, namely, it was not the statement of a fact but of the opinion or conjecture of the witness ; and surely argument is unnecessary to show that a principal is not to be affected by the speculative opinion of his agent.

Again, a medical witness for the plaintiff was permitted to testify as to the “probable’’.future “result” of her injury; but the witness declined to say that such result would ensue with “ reasonable certainty; ” on the contrary, he confessed that “there was a-certain amount of uncertainty about it” The evidence was incompetent. Strohm v. R. R. Co., 96 N. Y., 305 ; Tozer v. R. R. Co., 105 id., 617 ; 6 N. Y. State Rep., 447 ; Johnson v. R. R. Co., 52 Hun, 113 ; 23 N. Y. State Rep., 388 ; Gregory v. R. R. Co., 55 id., 303 ; 28 N. Y. State Rep., 726 ; Atkins v. R. R. Co., 57 id., 102 ; 32 N. Y. State Rep., 214. That these rulings were prejudicial is sufficiently manifest, since, whether the plaintiff was essentially hurt was a closely contested issue, and the incompetent evidence was made the basis of a charge that the jury might award damages for permanent injury. Baird v. Gillett 47 N. Y., 187.

Other errors in the admission of evidence are alleged; but discussion of them is unnecessary, as it is sufficiently apparent already that the judgment must be reversed.

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

Allen, P. J., and Bischoff, J., concur.


author: Daly, Ch. J.

text:
    Jose Tanco, Jr., Resp’t, v. Henry P. Booth et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Replevin—Bight to maintain action.
    Plaintiff, in New York, was requested by L., in Cuba, to purchase for him certain goods, and deliver them to one R., in New York, to be taken by him to Cuba. Plaintiff purchased the goods and delivered them to R., who packed them in a trunk and sent them on board defendant’s steamship. Before the steamer’s sailing. R. changed his mind about going and demanded the trunk, which was refused by the defendants; R. then delivered the key of the trunk to plaintiff, who then demanded the trunk, and being refused brought an action to recover it. Held, that it was not necessary to show authority in R. to deliver the goods back to plaintiff, for he had a right to resume possession in order to carry out the instructions of his correspondent, and that his title in the goods was sufficient to maintain his action.
    3. Carriers—Baggage—Confiscation—Revenue laws.
    Steamship companies are liable for their refusal to deliver baggage left with them by a passenger upon a foreign bound steamer, where it appears that no fraud or concealment was attempted, though their rules were disobeyed, and they suffered it to be carried on board in violation of the federal laws, respecting the manifest of cargo.
    S. Replevin—Parties.
    Defendants, while calling themselves agents of a steamship company, were, in fact, general partners and independent contractors, and were liable in an action of replevin for their refusal to surrender to a passenger his trunk, delivered upon one of their steamers for carriage.
    Appeal by the defendants Booth and Hughes from a judgment of the general term of the city court, affirming a judgment in favor of the plaintiff, awarding him possession of the property claimed in the action, of the assessed value of $400. The action was tried by the court without a jury."

      Carter & Ledyard, for app’lts; Felix T. Murphy, for resp’t
   Daly, Ch. J.

—In the month of Movember, 1888, the plaintiff, who resided in the city of Mew York, received a letter from one Llata, then in Cuba, requesting him to purchase certain goods, namely, pistols, jewelry, etc., and to deliver them to one Repico, in this city, to be by him taken to Cuba, agreeing to repay the plaintiff the sum paid by him for said goods, and five per cent commission for his services.

The plaintiff purchased the goods paying therefor $400, notified Repico, and, pursuant to the latter’s instruction, sent them to his house in this city. Repico packed the goods in his trunk with his baggage, and on December 1,1888, sent them to the steamship pier at which the steamship “ Miagara ” was lying, bound for Havana; he intending to take passage on said steamer and to take the trunk with him.

Before the sailing of the steamer Bepko changed his mind about sailing and demanded his trunk, but it was refused. The refusal was by the defendants Booth and Hughes, who were operating the line of steamers between New York and Havana to which the “.Niagara ” belonged, as agents for the New York & Cuba Mail Steamship Company, a domestic corporation which was the owner of the said steamers and engaged in the business of carrying freight and passengers between said ports.

Upon the refusal of the defendants to return the trunk to Bepko he informed the plaintiff of the facts, delivered to him the key of the trunk and told him that he should go and get it as he, Bepko, could not get it back. The plaintiff then demanded the trunk from the defendants and upon their refusal to deliver it brought this action, claiming the trunk and contents as his property. Having obtained them by proceedings of claim and delivery in the action, plaintiff subsequently shipped them to Llata in Cuba and received from him the sum he had expended in their purchase.

The first contention upon this appeal is that this action cannot be maintained because Llata and not the plaintiff was the owner of the goods at the time of his demand and the commencement of this action; that in the purchase and shipment of the goods plaintiff acted as agent of Llata; that if he had a lien for the purchase price he had lost it by delivering the goods to Bepko ; and that even if he stood originally in the attitude of vendor to Llata, yet when pursuant to the direction of the vendee he delivered the goods to Bepko, Llata’s agent, the title passed from him to the purchaser; and that if his title is based upon the redelivery to him by Bepko there is no proof of authority from Llata for such redelivery; that such redelivery would not revest the title in the plaintiff; that the delivery of the key of the trunk was not equivalent to the delivery of the goods, and, if it were, there was no intention on the part of Bepko by that act to confer ownership of the goods upon the plaintiff, but only an intention to use the plaintiff’s efforts in order to regain them himself.

All the circumstances concur in establishing that Beplco’s intention was to surrender the goods back to the plaintiff in order that he might make delivery of them as best be could, and to that end the key of the trunk was given.

The object which Llata originally had in view in having the goods entrusted to Bepko was that the latter should bring them with him to Cuba, and when this mode of transportation became ineffectual, because Bepko concluded not to sail and could not regain possession of the trunk, the responsibility was thrown upon the plaintiff to find some other way of making delivery of the goods he had purchased. It was plainly to effect this purpose that Bepko notified the plaintiff of what had occurred and gave up the key of the trunk.

This act of Beplco’s revested plaintiff with all the rights over and property in, the goods, which he originally possessed, the same as if Bepko had refused to receive the goods in the first instance. No particular form of transfer was required for the purpose. The delivery of the key and authority to demand the trunk was sufficient. It was not necessary to show authority in Repko to deliver the goods back to the plaintiff; if he chose to abandon the voluntary duty of transporting them to Llata, the plaintiff had the tight to resume possession in order to deliver them himself; for this was necessary in order to carry out the instructions of his correspondent.

It is contended, however, that even if the plaintiff, by Repko’s redelivery, was placed in the same position he originally occupied,, he was not the owner of the goods and could not, therefore, maintain this action.

As plaintiff had bought and paid for the goods he was the owner against all the world save Llata, and his right and possession were sufficient to maintain the action. The plaintiff does not claim by virtue of a lien, and is not, therefore, concluded by the fact of the delivery to Repko nor by the allegation of ownership in the complaint.

There remain two objections to the plaintiff’s recovery to be considered: The first is that the shipping of the goods in the trunk as baggage, was an attempt to violate the laws of the United States respecting the manifest of cargo and to defraud the steamship company of its freight, to which unlawful attempts plaintiff, it is claimed, was privy. The second is that the goods when demanded by the plaintiff were in the custody' of the New York & Cuba Steamship Company and the action cannot be maintained against Booth & Hughes, who were merely agents.

The only evidence that the plaintiff was privy to any unlawful design on the part of Repko or Llata, is his admission that he knew that Repko was going to carry the goods as his personal baggage, and that he supposed “ if they went as baggage no freight was to be paid upon them.” The defendants argue from this a design to assist in smuggling the goods into Cuba. Nothing of the kind is established. The facts do not show that any concealment was attempted. The baggage of passengers is subject to examination like packages of merchandise, and there is nothing to distinguish this case from the common practice of passengers to and from foreign ports who, for greater security, take personal charge of particular articles of merchandise where the rules of the steamship companies do not forbid. If any rule of this steamship company was violated it did not give the company the right to confiscate the property. The only authority cited by appellants for such an extreme measure is that of Cantlon v. Alexandre et al, where we affirmed a judgment in favor of defendant, rendered in a district court, it appearing that goods were clandestinely entrusted to the steward of the steamship company to be smuggled. Nothing in the case before us warrants the application of the doctrine on which that decision was based, viz.: That the law will not extend its aid to relieve a party from the consequences of such an unlawful scheme. As to the charge of an attempt to defraud the steamship company of its freight, the plaintiff’s testimony is simply that “if the goods went as baggage,” i. e., if permitted by the steamship company to go as baggage, he supposed no freight would be demanded.

The defendants are personally liable for their refusal to deliver the goods upon the plaintiff’s demand. They received the trunk in the course of their business, which was operating the line of steamers in question. They are the general partners in the firm of James E. Ward & Co., and, while they call themselves agents for the company, they were evidently independant contractors and principals, not servants acting for a master. It is not like McDougall v. Travis, 24 Hun, 590, which was an action against the freight agent of a railroad company, who was merely the servant of the company in whose possession the goods had lawfully come. The argument of the court in that ease is, that if one were in possession of the furniture in one’s own house, a person claiming it could not maintain replevin against the servant who refused to deliver it on demand. There is no question of the entire propriety of that decision, but it is not applicable to the facts of this case.

The judgment appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Henry B. Sire, App’lt, v. Gorge W. Rumbold et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Evidence—Written agreement—Contemporaneous parol agreement.
    Plaintiff leased certain premises to defendant and reserved to himself in the lease the right of entry for the purpose of certain building and repairing which he stated in the lease it was his intention to do, the lessees to have a deduction during the progress of such building of twenty-five dollars per month, and by a parol contemporaneous agreement he promised to make certain other changes, during which he would accept a lower rent than that named in the lease. Held, that the last mentioned agreement, though resting wholly in parol, was contemporaneous with, and collateral to, the written lease, and its consideration being the defendants' assumption of the lease, the agreement was operative and evidence thereof was properly received.
    3. Trial—Motion eor judgment without request to go to jury.
    Where both sides rest and plaintiff’s counsel moves for judgment on the pleadings and proofs it is equivalent to a motion to direct a verdict for plaintiff, and a concession that there are no facts in dispute, and it is not obligatory upon the court to submit the fact to the jury in the absence of a specific request to that effect.
    Appeal from a judgment and order of the general term of the city court affirming a judgment of that court in favor of defendants, and an order denying plaintiff’s motion for a new trial, in an action to recover a balance'- of rent alleged to be due under a lease in writing, the defense being that in consideration of the execution of the lease by the defendants the plaintiff, by a cotemporaneous verbal understanding, had agreed to accept a lesser rent than that reserved until the completion of certain alterations in the demised premises, which plaintiff had agreed to make.

      Albert L. Sire, for app’lt; Abram Kling, for resp’ts.
   Bischoff, J.

—From the record before us we can perceive no valid ground for disturbing the judgment of order appealed from. The agreement set up in the answer and which defendants established by sufficient evidence upon the trial is not in conflict with the provisions of the lease. The seventeenth paragraph of the lease recites that it is the intention of the lessor to build upon the demised and adjoining premises and he reserves to himself the right of entry for the purposes of such building and repairing. It also provides that during the progress of such building the lessees shall have a deduction from the rent reserved of twenty-five dollars per month. The agreement established, and upon which defendants relied on the trial, was that the plaintiff, in consideration of defendant’s execution of the lease in evidence, promised to change the attic floor of the demised premises, then consisting of one large room, into five separate rooms, and that until such change had been effected defendants were to pay $100 per month rent instead of $125 as provided for in the lease.

This last mentioned agreement though resting wholly in parol was cotemporaneous with and collateral to the written lease, the consideration therefor being the defendant’s assumption of the covenants and conditions on his part to be performed and contained in the written lease. Such an agreement is operative, and evidence thereof was properly received. Clenighan v. McFarland, Common Pleas, General Term, 11 N. Y. Supp., 719 ; 34 N. Y. State Rep., 624 ; Chapin v. Dobson, 78 N. Y., 74 ; Lanphire v. Slaughter, 61 How. Pr., 36. This disposes of all of plaintiff's exceptions to the admission of evidence for the defendants tending to prove the parol agreement.

When both sides rested plaintiff’s counsel moved the court for judgment for plaintiff upon the pleadings and proofs. This was equivalent to a motion to direct a verdict for plaintiff, and implied a concession that there were no facts in dispute. It was not thereafter obligatory upon the court to submit the facts to the jury in the absence of a specific request of the plaintiff to that effect. Ho such request was made, and an exception only to the court’s direction of a verdict for defendants is unavailing, as plaintiff will not after moving for a direction in his favor, and without requesting to go to the jury after the motion is denied, be permitted to urge on appeal that there were questions of fact, which ought properly to have been submitted to the jury. Dillon v. Cockcroft, 90 N. Y., 649 ; Ormes v. Dauchy, 82 id., 443 ; Yale v. Dart, 13 N. Y. Supp., 277 ; 36 N. Y. State Rep., 40.

The remaining exceptions referred to in appellant’s brief and not hereinbefore noticed refer to the admission and exclusion of evidence, but none of them upon examination appear to be of sufficient force to call for reversal or merit discussion.

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

Daly, Ch. J., and Pryor, J., concur.


author: Per Curiam.

text:
    Louisa J. Bruen, Resp’t, v. The Manhattan Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Oosts—Allowance on course—Title to land—Code Civ. Peo., § 8838.
    This action was brought for damages to real estate by the construction and operation of an elevated railroad upon tlie street on which plaintiff’s property abutted, she alleging that she was the owner in fee and entitled to an easement in the street, and defendant denying any knowledge or information sufficient to form a belief as to the allegations of ownership. Held, that a claim of title arose on the pleadings and came in question upon the trial, and plaintiff was entitled to costs under Code Civil Procedure, § 333d.
    Appeals by the defendant from two orders made at special term: (1) An order setting aside defendant’s bill of costs and allowing costs to plaintiff; and (2), an order denying a motion to set aside a certificate of the trial justice as to claim of title, granted under paragraph 3228 of the Code of Civil Procedure.
    This was an application by plaintiff for a certificate from the judge who tried this cause, that a claim of title to real estate came in question on the trial, in order that plaintiff might tax full costs under Code Civ. Pro., § 3228, she having recovered but six cents damages; also for an order setting aside costs as taxed by defendant. The action was to recover damages for injury to the ease-ments in Amity or West Third street, appurtenant to the plaintiff’s premises Mo. 118, in said street.
    The following opinion was written at special term:
    Daly, Ch. J. —The complaint alleged that the plaintiff was the owner in fee of the house and lot 118 West Third (formerly Amity) street, and the owner of an easement in the street, to have the same kept open as a public street, and alleges the construction and operation of the elevated railroad upon said street, and interference with plaintiff’s easements. The defendants deny any knowledge or information sufficient to form a belief as to the allegations of ownership. Upon the trial the plaintiff proved her title by deed to the premises in question, and the opening of Amity street as a public street.
    A claim of title arises upon the pleadings, and comes in question upon the trial of such an action as the present. The sole ground of plaintiff’s claim is the interference with easements in the public street appurtenant to the lot which she owns. She must prove title to the lot to recover, if there were a defect in her title to the lot to recover. In Dean v. Metropolitan El. R. R. Co., 119 N. Y., 540 ; 30 N. Y. State Rep., 81, a new trial was ordered for want of proof of title in the plaintiff. That, like the present, was an action at law, to recover damages caused by" the construction and maintenance of the elevated railroad in front of plaintiff’s premises. It was “ an action to recover for an injury in the nature of a trespass.” The question litigated was as to plaintiff’s title and possession. He gave in evidence a deed of the premises executed to him after the commencement of the action, and there being no other evidence of title the recovery was set aside. As it was necessary, therefore, for the plaintiff, in order to recover for the injury to his freehold to allege and prove his title, the question of title arose upon the pleadings. Kelly v. N. Y. & Man. B. R. R. Co., 81 N. Y., 233.
    It is contended by the defendants that this case is governed by the decision in Rathbone v. McConnell, 21 N. Y., 466. That was an action for the diversion of water, the complaint alleging the plaintiff to be the owner and in possession of land, and entitled to the benefit of the stream which flowed upon it; and it was held that a denial of each and every allegation of the complaint did not present a claim of title; “ as the plaintiff need only prove possession, the defendant did not set up any title to the plaintiff’s close, and it was not to be presumed that the plaintiff would undertake to give any other evidence of title than that which he alleged, to wit, possession; or that any question of paper title1 would be litigated on the trial.” So far as it may be contended that this case is an authority for the proposition that no claim of title arises upon the pleadings, unless the defendant sets up title to some part of the property described in the complaint, the decision is fully explained by the ruling in the case of Kelly v. N. Y. & M. B. R. Co., above cited. The opinion in the latter case notices the contention, “ that inasmuch as title in the defendant was not set up, and proof of possession would have sufficed to maintain the action, the issue upon the question of title was immaterial ; ” and holds that “ the position might be sound, if the complaint claimed damages only for the invasion of plaintiff’s possession,” but not where damages to the freehold was claimed; and that to entitle him to recover for injury to the freehold it was necessary to allege and prove his title.
    It may be considered as settled that proof of naked possession alone is not sufficient to sustain the action, now so familiar to our courts, for interference with the enjoyment of easements in the street suffered by the owner or léssee of premises abutting on the streets in which the elevated railroads are constructed and operated. Proof of title to the premises being necessary to maintain the action, a claim of title to real property arises upon the pleadings whenever it is alleged in the- complaint and denied by the answer, and always comes in question upon the trial unless the title of the plaintiff is conceded. The case of Quinn v. Winter, 28 N. Y. State Rep., 178, relied upon by defendants, does not conflict with this view. The action was for an injunction, restraining the defendant from using an engine on his own premises, and creating dust and noise, rendering plaintiff’s premises uninhabitable. We held, in that case, that naked possession alone, without title, was sufficient to maintain such an action against a wrongdoer; that it was not for such wrongdoer to call in question the right of possession of any occupant of the house; and we held that claim of title did not arise upon the pleadings. A late decision of the superior court, special term, in the case of Jones v. Metropolitan El. R. R. Co., is cited as in conflict with the conclusions now arrived at. That decision is placed upon the ruling in Rathbone v. McConnell, above cited, but it does not appear that the case of Kelly v. N. Y. & M. B. R. R. Co., above referred to, was brought to the attention of the court.
    The application will be granted, without costs.

      Julien T. Davies and William R. Page, for def’ts; Stanley W. Dexter, for resp’t.
   Per Curiam.

—We do not consider it necessary to add anything to the opinion of Ch. Judge Daly at the special term. We regard the dicision rendered by that court as correct, and affirm the orders appealed from, with costs. ■

Allen, P. J., - Bischoff and Pryor, JJ., concur.


text:
    Richard E. Preusser et al., Resp’ts, v. James M. Stockton et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Appeal—Review—Contradictory evidence.
    • Where the issues were fairly submitted to the jury upon contradictory evidence, their verdict will not be disturbed on appeal.
    Appeal from a judgment of a trial term entered on a verdict of a jury.

      Thaddeus D. Kenneson (Henry A. Root, of counsel), for app’lts; John Graham, for resp’ts.
   Per Curiam.

—The appeal from the order denying the motion for a new trial presents the point that the verdict was against the weight of evidence. The controversy turned upon the question whether the plaintiffs or defendants told the truth of the transaction between them. The issue was fairly submitted to the jury upon the contradictory stories of the respective parties, and we perceive no reason for disturbing the verdict. In the exercise of their appropriate function the jury accepted the version of the plaintiffs, and their finding is as clearly in conformity with the evidence as with the interests of justice.

The appeal from the judgment challenges the validity of the appellants’ exceptions; but notwithstanding the ingenious argument of counsel, none of them appears of sufficient plausibility even to require or justify serious discussion.

Judgment and order affirmed, with costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur


text:
    Rowland W. Thomas et al., Resp’ts, v. James H. Whitelegge, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1891.)

    1. Appeal—Alternative order—Not an adjudication in advance.
    Where.a party obtains an order requiring, a justice of the district court to amend his .return or show cause, the justice is authorized to immediately file his amended return, and this alternative portion of the order is not an adjudication in advance by the court upon a contested motion.
    ' 3. Same—Amended return—Not vacated for irregularity of order.
    Where a justice of the district court is served with an order to make an amended return to his return on appeal or show cause, and makes his return, it cannot be vacated on the ground that the order was obtained through irregularity or fraud; the remedy of the party aggrieved is to move for a further amended return, or to proceed against the justice for a false return.
    3. Same—Order to make return—When returnable.
    An order requiring a justice of the district court to make an amended return or show cause, returnable in more than eight days, is not irregular under § 780 of the Code.

      Appeal from an order of special term, denying a motion to set aside an order to file a further or amended return or show cause.

      Geo. W. Wilson, for app’lt, J. E. Eustis, for resp’ts.
   Per Curiam.

—In Zdbriskie v. Wilder, 12 Daly, 527, it was held by this court at special term that the justice could not make a supplementary return amending, or altering, his original return without applying to this court for leave, in order that notice might be given to the parties, so that neither would be surprised when the case came on for argument. The right of the justice upon his own motion to make such supplementary return by leave of the court was not questioned. Where one party obtains an order to show cause requiring the justice to amend his return in certain particulars or show cause to the contrary, the justice is authorized to immediately file a return so amended without waiting for a final order upon the motion, if the facts, in his judgment, require such amendment. He has the leave of the court to do so, and the service of the order to show cause upon the other party to the action, even after the amended return is filed (but before the return day of course), is sufficient notice to such other party, whose duty it is to attend upon return day to hear the answer of the justice to the application, and who cannot therefore be surprised by the amendment.

Here the justice availed himself of the leave given by the order to show cause and filed the amended return. The opposite party having heard of it, moved to set aside the order to show cause and also to set aside the amended return on the ground that the order was irregular and grants a contested motion ex parte and was fraudulently obtained.

Whatever irregularity or fraud there might be in obtaining the order it could not affect the return made by the justice; who is required to look no further than the order granting him permission to make an amended return, and to the justice and propriety of the amendment which he was authorized to make; so that even if the order were vacated for irregularity or fraud the amended return could not be vacated. The remedy of the party aggrieved is to move for a further amended return, or to proceed against the justice for a false return.

The order was not irregular. It is the practice to institute the proceeding to procure an amended return by an order to show cause in the alternative; and as the order was not returnable in less than eight days, it was not irregular in the particular respect complained of. The order did not decide the motion in advance; the fact that the justice was given leave to comply with the alternative portion of the order was not an adjudication by the court upon a contested motion. If the justice complied, there was no contest so far as he was concerned; and there was no adjudication against appellant because he cannot contest this question with the justice upon the motion. The justice has the right to amend his return by leave of the court upon notice.

The order must be affirmed.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Philip Levitt, Resp’t, v. The Prudential Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Principal and agent—Insurance—Liability of agent for premiums.
    Plaintiff deposited with defendant fifty dollars as security for the faithful performance of his duty as an agent of defendant, and entered into an agreement “that on Monday of each week, I (the plaintiff), am to he debited with the amount of the weekly premiums shown on the Life Policy Register, less the total amount of the weekly premiums shown on policies entered on the lapsed policy register for that week, and it is agreed that the company is not bound to prove that I have received the premium from each particular policy holder, but that the amount so shown shall he considered"as being absolutely received by me on behalf of the company.” In an action to recover the deposit it was shown that the premiums for lapsed policies which had been in the plaintiff’s hands for collection amounted to $67.43. Held, that under the agreement, plaintiff was either liable for the whole of this amount or none, and that it not appearing that the policies given to him for collection were known by the company to he incapable of collection, he is bound by the agreement, and the whole amount uncollected should have been allowed the defendant.
    Appeal from a judgment of the district court in the city of New York, for the fourth judicial district.

      W. O. Campbell, for app’lt; S. Mullen, for resp’t.
   Bookstaver, J.

—This action was brought to recover fifty dollars deposited with the defendant as security for the faithful performance of his duty, by the plaintiff as an agent of the defendant, and for work, labor and services, amounting in all to $58.85. The answer was a general denial, and a counterclaim for $118. There is no substantial dispute about the facts in this case. When the plaintiff was appointed an agent of the defendant he deposited the sum of fifty dollars with the Howard Savings Institution of Newark, New Jersey, in the name of both parties. It was agreed between them that in the event of a deficiency, for any cause, in the plaintiff’s account, as agent, the amount deposited with all additions made by the way of interest or dividends, or such portion thereof as might equal the amonut of the deficiency, might be withdrawn by the company from the savings institution and retained by it for the payment of such deficiency, the surplus if any, to be paid to the plaintiff.

When the plaintiff entered into the employment of the defendant, a printed agreement was executed between them, the seventh clause of which provides, that on Monday of each week, I (the plaintiff) am to be debited with the amount of the weekly premiums shown on the life policy register, less the total amount of the weekly premiums shown, on policies entered in the lapsed policy register for that week, and it is agreed that the company is not bound to prove that I have received the premium from each particular policy holder, but that the amount so shown shall be considered as being absolutely received by me on behalf of the company.”

On the trial it was shown without contradiction, that the premiums for lapsed policies which had been in the plaintiff’s hands for collection, amounted to $67.43. The justice has apparently-allowed for only a portion of this, and not for the whole amount. We think, under the terms of the provision of the agreement above set forth, either the whole of this amount, or none of it, should have been allowed, as the testimony makes no distinction as to any of it, and the plaintiff was liable to the defendant for the whole or none.

There is nothing in the evidence to show that this agreement was obtained through any fraud, false representations or duress on the part of the defendant On the contrary, it appears that he voluntarily entered into the agreement. It does not appear that he was ignorant of its terms or the effect of those terms, nor was it shown on the trial that the policies given to him for collection were known to the company to be incapable of collection, or that any fraud or imposition was practiced upon him in respect thereto.

Under these circumstances, we think the plaintiff is bound by the agreement which he made, and under the proof given upon the trial, the whole amount uncollected should have been allowed the defendant. The exhibits offered in evidence by the defendant being memoranda made by the plaintiff, are in the nature of accounts stated as between the agent and the company, and they were properly received in evidence without objection. Metropolitan Life. Ins. Co v. Callan, 23 N. Y. State Rep., 629.

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

Bischoff, J , concurs.


author: Bischoff, J. Pryor J.

text:
    William H. Crane et al., App'lts, v. Nathan J. Schloss et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1, Appeal—Error in charge—What exception necessary.
    To authorize an appellate court to review alleged errors in the charge of the trial court, arising from an unauthorized assumption of a fact in dispute, or an omission to submit to the jury for their determination any material fact concerning which there is conflicting evidence, an exception alone is not available; it must be accompanied by a specific request for the submission of the fact in dispute to the jury, and if refused, an exception taken.
    8- Same—Review—Exceptions.
    The rule that errors committed upon the trial may, in the furtherance of justice, be reviewed on appeal, although a valid exception he wanting, has reference only to the general term of the court wherein the judgment was rendered, and does not apply to appeals from the city court of New York to the court of common pleas, in which a valid exception is necessary
    Appeal from a judgment and order of the general term of the city court affirming a judgment of that court for defendants, and an order denying plaintiffs’ motion for a new trial upon the minutes.

      Howard R. Bayne, for app’lts; Simson Wolf, for resp’ts.
   Bischoff, J.

—Plaintiffs sued to recover the value of certain gas fixtures and supplies alleged to have been sold and .delivered to the defendants at their request, and the defendants resisted the claim upon the ground that the fixtures and supplies were delivered upon trial, and that they were not to retain and pay for the same unless such fixtures and supplies proved satisfactory, which, it was claimed, they did not.

Upon the trial of the action evidence was introduced for the plaintiffs tending to show that with the consent of the defendants their premises were supplied by plaintiffs with four chandeliers for trial and subject to defendants’ satisfaction and approval, and that sometime thereafter, defendants having expressed their satisfaction and approval they directed plaintiffs to supply eight additional chandeliers. The evidence adduced for defendants tended to show that the eight chandeliers were furnished by plaintiffs under the same conditions as the first four. No exceptions were taken to the admission and exclusion of evidence and when both sides rested there was sufficient evidence to have authorized a verdict supporting either version of the contract: and that counsel for the respective parties so considered, is manifest from the absence of a motion to dismiss the complaint or for the direction of a verdict, and upon this appeal it is not contended that under proper instructions by the trial judge the verdict for defendants would not have been authorized by the evidence.

. Appellants’ only complaint is that the trial justice erred in his charge by assuming that the contract was as claimed by the defendants, thus withdrawing from the jury the consideration of the fact whether or not the fixtures and supplies, the value of which was sought to be recovered in this action, were furnished by the plaintiffs under the ■ unconditional promise of the defendants to pay therefor. It must of course be conceded that if defendants’ promise to pay was unconditional it matters not that the fixtures subsequently proved unsatisfactory to them, and they could not escape payment on that ground; while, on the other hand if their promise was to pay only in the event of their approval of and satisfaction With the fixtures, the plaintiffs could not recover in the absence of proof that defendants were satisfied and did so approve,

A careful perusal and consideration of the learned trial justice’s charge would lead to the conclusion that there is force in appellants’ contention and that the justice fell into the error of assuming the defendants’ promise to have been conditional upon their approval and satisfaction. Be this as it may, however, the insufficiency of appellants’ exception precludes us from according the desired relief. Counsel excepted “to so much of the charge of the court as states to the jury that they must find for the defendants if the goods in question were not satisfactoiy to the defendants and tc so much of the charge as states that if the jury determine that the work was not done to the satssfaction of the defendants, then their verdict must be for the defendants.”

Were it conceded that defendants’ promise was conditional upon their approval and satisfaction the instructions would have been proper, and the error complained of rests rather in an omission to charge than in a misdirection. This omission consisted in the failure of the trial justice to call the attention of the jury to the fact that the evidence for plaintiffs tended to show that defendants’ promise to pay for the twelve chandeliers supplied ,was unconditional and made after their approval of the first four, and then to have directed the jury if they should find in accordance with plaintiffs’ version of the contract, to award them the sum demanded.

To authorize an appellate court, however, to review alleged errors in the charge of the trial court, arising from an unauthorized assumption of a fact in dispute, or an omission to submit to the jury for their determination any material fact concerning which there is conflicting evidence, an exception alone is not available. It should be accompanied by a specific request for the submission of the fact in dispute to the jury, and if such request is refused, the exception thereto is available on appeal, otherwise the party complaining must be deemed to have acquiesced in the charge. Mallory v. Railroad Co., 3 Abb. Court of App. Dec., 139 ; Van Vechten v. Griffiths, 4 id., 495 ; Quill v. N. Y. C. & H. R. R. R. Co., 11 N. Y. Supp., 80 ; 32 N. Y. State Rep., 612.

The cases cited by counsel for appellants, to the effect that errors committéd upon the trial may, in the furtherance of justice, be reviewed on appeal, although a valid exception be wanting, have reference only to the authority of the general term of the court wherein the judgment was rendered to award a new trial for such errors. Respecting appeals' from the city court to this court, the power to grant relief for such errors is the same as that of the court of appeals, McEteere v Little, 8 Daly, 167 ; Farley v. Lyddy, id., 514 ; and to authorize a reversal, a valid exception is imperatively necessary. Rowe v. Comley, 2 Civ. Pro., 424.

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

Pryor J.

—It is quite true that, in the opening of his charge, the learned trial judge assumed the contract to be conditional on the approval of the lights by the defendants; but, on interruption by the plaintiffs’ counsel, he corrected the statement and distinctly put the case to the jury on the hypothesis that the purchase by the defendants was absolute, saying, ‘‘ if this testimony ” (of the plaintiff that the order was unconditional) “ is believed by you, your verdict will be for the plaintiffs.” Taken in its entirety the charge, including the responses to the requests, is not obnoxious to criticism. With this qualification, I concur in the ppinion for affirmance.

Daly, Oh. J., concurs.


text:
    Eugene Higgins et al., App’lts and Resp’ts, v. William C. Dewey, App’lt and Resp’t.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Order op arrest—Fraudulent service—Mat be set Asms.
    Where a defendant is inveigled into the jurisdiction of the court with, the purpose of subjecting him to service of a legal order of arrest, the service may be set aside without vacating the order.

      2. Same—Appeal.
    Where an adjudication of a general term, vacating an order of a special term, is expressly on the ground that the order is erroneous as a matter of law, an objection to its review on appeal cannot be made, on the ground that the vacating of the order appealed from was a matter within the discretion of the court.
    Appeal from an order of the general term of the city court, affirming an order of the special term.

      Henry L. Langdon, for pl’ffs; F. A. Burnham, for def’t
   Pryor, J.

—A summons having issued, and an order of arrest against the defendant having been obtained because of fraud in incurring the liability upon which he was sued, on motion at special term of the city court, the service of the summons and of the order of arrest, and the order of arrest itself, were vacated and set aside, on the ground that the plaintiffs had enticed him into the jurisdiction of the court for the purpose of such service and arrest.

On appeal to the general term, the order of the special term was except in so far as it vacated the order of arrest, and in this affirmed, particular it was reversed. From so much of the order of the general term of the city court as affirms the order at special term, the plaintiffs appeal; from so much of the order of the general term as reverses the order at special term, the defendant appeals.

The finding of the special term of the city court on sufficient evidence that the defendant was enticed within the jurisdiction for service and arrest, having been affirmed by the general term, is not open to review upon this appeal, but must be accepted by us as an incontrovertible fact in the case. Stringfield v. Fields, 13 Daly, 171 ; Walsh v. Schulz, 12 id., 103 ; McEteere v. Little, 8 id., 167 ; Clarke v. Laurie, 82 N. Y., 580 ; Allen v. Meyer, 73 id., 1.

The question, then, is whether the inveigling the defendant into the jurisdiction with the purpose of subjecting him to process and arrest, be sufficient ground in law for setting aside the service of such process and arrest; and that it is so sufficient the authorities do not leave us at liberty to doubt. Dunham v. Cressy, 21 N. Y. State Rep., 266 ; Martin v. Woodhall, 21 id., 465 ; Zipork v. Chmleniker, 15 id., 215 ; Baker v. Wales, 14 Abb. N. S., 331 ; Carpenter v. Spooner, 2 Sandf., 717 ; Smith v. Meyers, 1 T. & C., 665 ; Browning v. Abrams, 51 How., 173 ; Slade v. Joseph, 5 Daly, 187 ; La Grave’s Case, 14 Abb. N. S., 334, note; Steiger v. Bonn, 59 How., 496 ; Goupil v. Simonson, 3 Abb., 474 ; Williams v. Bacon, 10 Wend., 636 ; and citations infra.

It results, therefore, that so much of the general term order as affirms the order at general term, is correct and must be sustained.

On the defendant’s appeal the question is, whether it was error merely to set aside the arrest, instead of vacating the order of arrest itself ?

The plaintiffs contend that whether the court should have set aside the arrest only or the order also, was matter of discretion, and so is not reviewable by this tribunal. But, the adjudication of the general term of the city, court proceeded expressly on the ground, that the order of the special term, vacating the order, was erroneous, as matter of law; and this ruling presents a question for our consideration. Tilton v. Beecher, 59 N. Y., 176 ; Tolman v. R. R. Co., 92 id., 353.

Was it legal error to refuse to vacate the order of arrest, because the arrest was wrongfully effected ? The validity of the order is unchallenged and unchallengeable. It was duly awarded, upon sufficient ground, and by competent authority. The vice complained of is not in the order, but in the manner of its service; and logically the remedy should be directed against the wrong. Moreover, by his discharge from arrest the defendant received complete reparation for his injury. An order valid in itself cannot be invalidated by faulty execution; and the redress is perfect when the fault in execution is corrected. No legal principle or exigency of justice requires that the remedial provision should reach beyond the wrong and suppress the right as well.

' The defendant argues that here was an abuse of process, and an abuse of process will be corrected by the court. True, the court will see that its process be not abused; but to remedy the abuse is one thing, to abolish the use quite another. The abuse is corrected by relieving from its consequences, and, in a proper case, remitting the injured party to his'action for damages. Here, however, was no abuse of process. Process is abused when perverted to a purpose beyond or beside its legitimate scope and office, Benninghoff v. Oswell, 37 How., 235 ; Grainger v. Hill, 4 Bing. N. C., 212; Rossiter v. Minnesota, etc. Co., 37 Minn., 296; while in the present case, the the order of arrest was applied to the very purpose for which it issued. True, defendant was exempt from arrest under the order so obtained; but arrest of a privileged per son gives no action for false imprisonment. Deyo v. Van Valkenburgh, 5 Hill., 244; Smith v. Jones, 76 Me., 138; 49 Am. Rep., 598.

In reason, therefore, the remedy for a wrongful arrest under a valid process, is the discharge of the person, and not the vacation of the process. And so are the authorities.

In Barlow v. Hall, 2 Ans., 461, a party was confined without writ until a writ could be obtained, and then arrested upon it. The court said: “ The defendant has been seized illegally; that illegal confinement has been continued under our process. He must be discharged.”

In Lyford v. Tyrrel, 1 Ans., 85, the defendant was seized Sunday and detained until Monday, when he was arrested on a debt of $500. He was discharged.

In Luttin v. Benin, 11 Modern, 50, Holt, C. J., said: “If a man is wrongfully brought into jurisdiction and then arrested, yet he ought to be discharged.”

“ If the party be illegally arrested or detained, though the process be valid, this is ground for his discharge.” 3 Hill, 666, n.; Loveridge v. Plaistow, 2 H. Bl., 29 ; Birch v. Prodger, 1 B. & P., N. R., 135 ; Wells v. Gurney, 8 B. & C., 769, and cases, supra.

Often as the courts have relieved from arrests obtained by enticing the party within the jurisdiction, counsel for defendant adduces but four instances in which, as he alleges, the process itself lias been vacated. But he is mistaken in his construction of three of those cases.

In Lagrave's Case, 14 Abb. N. S., 333, note, there was a technical abuse of process in instituting a criminal proceeding for a civil purpose; but the prisoner was merely “ discharged from the orders of arrest,” page 343, the orders themselves not being disturbed. Benninghoff v. Oswell, 37 How., 235, again, was an abuse of process by an arrest on a criminal charge for the purpose of coercing settlement of a private claim ; and here, too, “ the arrest was set aside,” but not the order; page'235. In Seaver v. Robinson, 3 Duer, 622, the defendant was served with a summons here while attending as a witness from another state, and “ the service of the summons was set aside.” In Harland v. Howard, 57 Hun, 113 ; 32 N. Y. State Rep., 869,the defendant was forcibly detained until the sheriff could arrest him on civil process; and the adjudication was that “ he should be released. ” True, .the court vacated the order of arrest; but no authority was cited or reason given for the ruling; nor does it appear that attention was directed to the distinction between setting aside the arrest and vacating .the order; a distinction recognized and respected in Metcalf v. Clark, 41 Barb., 48. ■ In that case the service of the summons, not the summons itself, was set,aside, and the attachment was vacated because “in no case is a warrant of attachment authorized against executors.”

Upon principle and authority, therefore, the general term of the city court rightly reversed the order vacating the order of arrest.

It follows that the order appealed from should be affirmed, but without costs to either party.

Allen, P. J., and Bischoff, J., concur.


text:
    Charles E. Gray, Resp’t, v. The American Bank Note Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Appeal—Resettlement op case—Delay.
    Where on the argument of an appeal it appeared that the only ground of error alleged was the insufficiency of the evidence to support the verdict upon which the judgment appealed from was entered, and the court announced that it was precluded from reviewing the evidence, as the case on appeal did not purport to contain it all, but withheld decision to give appellant an opportunity to resettle the case, if it is not done by the next term of the court, the appeal will be disposed of.
    Appeal from a judgment of the general term of the city court

      Isaac L. Miller, for app’lt; William R. Wilder, for resp’t.
   Per Curiam.

—On the argument of this, appeal at the general term in January last, it appeared that the only ground of alleged error assigned by appellant was the insufficiency of the evidence to support the verdict upon which the judgment appealed from was entered, and the court thereupon announced that it was precluded from reviewing the evidence in as much as the case on appeal does not purport to contain all the evidence taken on the ' trail. Arnstein v. Haulenbeek, N. Y. Com. Pl. Dec., 1890 ; 11 N. Y. Supp., 701 ; 34 N. Y. State Rep., 297.

At the request of appellant’s counsel, however, decision of the * appeal was deferred so that he might have opportunity of causing the case to be resettled and the requisite certificate to be supplied and so enable us to dispose of this appeal on the merits. Since then j there has been sufficient time within which the necessary application could have been made to and determined by the court below, and as a settlement of the case has not been brought to our atten- ¡ tion and we have not been advised that an application for such resettlement is pending and undetermined, we feel justified in disposing of this appeal which must be as intimated on the argument. The judgment and order appealed from should be affirmed,, i with costs.

Judgment and order appealed from affirmed, with costs.

Allen, P. J., Bischoff and Pryor, JJ., concur. ;


text:
    Abraham Harris, Adm’r, Appl’t, v. The Woman’s Hospital in the State of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Negligence—Hospital’s duty to patient.
    One H., plaintiff’s intestate, was received as a patient in defendant’s, j hospital for treatment, and submitted to an operation, which was apparently successful, but in the early morning four days later, while temporarily insane, she arose unobserved from her bed in the ward, leaped from a window and was killed. An action was brought to recover damages and ( on the trial it was shown that in the ward at the time there were nineteen patients and one nurse; the physician had seen intestate every day and found nothing wrong. About one A. m. the nurse’s attention was called to the fact that she was trying to get out of bed. She quitted her, reported ; it to the physician, who gave her a sedative, after which she was quiet, j About 4 A. m. the nurse passed her bed and she was apparently asleep, then hearing a noise, went to see what it was, returning, found intestate’s bed empty; there was no lack of skill shown in the surgeon who performed the operation, the house physician, or of capacity in the nurse. Pteld, that there was no negligence shown on the part of defendant.
    Appeal from trial term. The complaint was dismissed, with directions that the plaintiff’s exceptions be heard in the first instance at the general term.

      Edward Russell, for appl’t; Hoppin & Talbot (P. H. Vernon, of counsel), for resp’t.
   Daly, Ch. J.

—This is an action to recover damages for the death of Jennie Harris, the wife of Abraham Harris, the plaintiffr who, as her administrator, claims under the statute which gives a right of action for the wrongful act, negligence or default, causing the death of a person who would have had a cause of action for such wrongful act, neglect or default if death had not ensued. Code, § 1902.

The deceased was received as a patient in the Woman’s Hospital, in the city of New York, on January 9, 1889, for treatment, for a lacerated cervix, and submitted to an operation performed by the late Dr. James P. Hunter, assisted by Dr. Clement Clove-land and Dr. Lemuel S. Baldwin, on January 14, 1889. The operation was apparently successful; but about four o’clock in the morning of January 19th, while laboring under a temporary fit of insanity, she arose unobserved from her bed in the ward where she lay, and finding her way to the toilet room of that floor, leaped from the window and was killed by her fall of four stories to the ground below.

In the ward in which Mrs. Harris lay, which was a section of the Baldwin pavilion of the hospital, and which was eighty-five feet long by twenty-five feet wide, there were beds for nineteen patients, and all were occupied; three nurses were on duty by day, but only one at night; a physician was in attendance all night who had fifty to seventy-five patients under his care; he saw Mrs. Harris every day after the operation, and sometimes oftener; he saw nothing unusual in her condition after the operation ; the night of the fatal accident her pulse was very nearly normal, with nothing to indicate fever or anything wrong; she read her prayers until the lights were put out, and was quiet until about one o'clock A. M., when the attention of the nurse, Miss Carson, was called by Mrs. Curoe, the patient in the adjoining bed,to the fact that Mrs. Harris had called her up and was moving in her bed; the nurse went to her and found her trying to get out of bed, and told her “ she would injure herself if she got out of her bed; that she must stay in bed and ask for anything she wanted, because she would spoil her operation if she tried to get out any more.”

Mrs. Harris lay on the bed and was quiet after that, and the nurse went down and told the doctor what Mrs. Harris had tried to do. He prescribed two drachms of bromide, a common sedative usually prescribed for the purpose of quieting the general nervous system, and by so doing produce sleep. The nurse administered the -remedy to Mrs. Harris, who, after that, was quiet and apparently asleep. About four o’clock the nurse passed her bed, and she was apparently asleep. The nurse went to a bed, four beds from her’s, to attend another patient, and while there heard the noise of á shutting door at the other end of the ward. Going to see what was the matter, she found that the wind had blown the door open and slammed it. The nurse from the floor below heard the noise and came up. .Miss Carson thought of Mrs. Harris, went to the bed and found it empty, she having stolen so quietly from the room that she was not heard. The window of the little toilet room, located just off the ward, was found open, and a chair placed so that anybody could get up to the window and out of it. The body of Mrs. Harris was found in the yard beneath this window.

It is claimed by the plaintiff that the negligence of the hospital authorities was the cause of the death, and that this negligence was in not providing more than one nurse at night to look after the patients in the particular ward, and a nurse more experienced than the nurse in charge; also in not providing a physician to sit up at night and watch the patients and prescribe from his personal examination; and in not providing more than one physician to attend to these patients at night, 'and one more experienced than the surgeon in charge.

There can he’ no "charge of negligence unless there is a breach of duty imposed by law; and to ascertain whether there was negligence on the páft of the hospital authorities in this case, the duty which the law imposes upon them must be considered. Their duty is to exercise ordinary and reasonable cáre in furnishing meditial attendance and nursing" to the patients whom they‘receive.. This care is not to be apportioned to the amount of money which the patient contracts' to pay, and is wholly irrespective of any consideration growing out of the fact that the sum paid, ór’agreed to< be paid, is less than the actual cost to the institution of maintaining, treating and caring for such patient.

The same care must be taken of a charity patient as of one< who pays the highest price demanded for hospital accommodation In this respect the same applies to hospital authorities as to-individual physicians, and the rule as to the latter is well stated. “ It may be considered as a received principle of law that a physician having rendered his services gratuitously, as in hospitals, or among outdoor poor, is bound to exhibit the same degree of ordinary diligence and skill in the treatment of a patient as though he were acting under the incentive of a consideration or a pros-1 pective reward. If he undertakes to execute the trust reposed in him he is bound to do it well, or else he may be compelled" to respond in damages to the party injured by his misfeasance. He cannot apportion medical skill, or his diligence, to meet the prospective emoluments flowing out of any given case. ” Ordronaux Jur. of Med., §27.

“ YHiether the- patient be a pauper or a millionaire, whether he' be treated gratuitously or for a reward, the physician owes him the same measure of duty and the same degree of skill and care. He may decline to respond to the call of a patient unable to compensate him, but if he undertake the treatment of such a patient, he cannot defeat a suit for malpractice, nor mitigate a recovery against him upon the principle that the skill and care required of a physician are proportionate to his expectation of pecuniary recompense.” Per Pryor, J., charge in Becker v. Janinski, not reported. See 39 Med. Rec., 461. “A doctor attending a poor person out of charity would be liable for mere ordinary negligence in the treatment of his patient and constructively it would not be-mere ordinary negligence, because his position implies skill.” Shirley Leading Cases, 43 ; Shiells v. Blackburne, 1 H. Blackstone, 158.

The observation in Sher. & Red. on Negligence, § 432, that a physician or surgeon attending gratutitously is liable for gross negligence only, is qualified and explained by the context enunciating the principle that, as the duties of a physician relate to the preservation of human life it may be gross negligence to fail in giving such attention to his patient as would only be expected from a well paid person in respect of matters of more pecuniary value.

The deceased then, .whatever her pecuniary arrangement with the hospital authorities, being entitled to the same degree of care as every other patient, the defendants were bound to exercise, as we have said, ordinary and reasonable care in furnishing medical attendance and nursing. They were bound to supply the services of a physician and surgeon possessed of the same degree of skill, learning and experience to be expected of his profession generally ; for such qualification is all that a patient-has the legal right to expect of any attending physician. Small v. Howard, 128 Mass., 131 ; Hathorn v. Richmond, 48 Vt., 561 ; see Rogers. ■“ The Law and Medical Men,” chap., 5, and cases quoted:

“The diligence and skill required are reasonable, or ordinary, diligence and skill such as is manifested or possessed by the profession as a body; not the highest degree, nor that, degree which is possessed only by the most eminent of the profession.” -Mc-Clelland’s Civil Malpractice, 521, and cases cited.

It was proved without contradiction, in this case, that Dr. Hunter, the surgeon who operated upon Mrs. Harris, was one of the best known surgéons in the country, and was selected, by her, and there is no question as to the proper performance of the operation.

It was also proved that Dr. Baldwin, the house surgeon, who was on duty the night of her death, had had charge of her after the operation; that he was a graduate of the Long Island College Hospital, 1886, and secured his position in the Women’s Hospital in 1887, at the age of twenty-five years, after a competitive examination ; and there was no attempt to show that he lacked the necessary skill, learning or experience for his position. As to the nurse who was in attendance on the night in question, her capacity and competency for the place were conceded on, the trial.

There being no dispute as to the learning, experience and skill of the physician in charge, nor as to the capacity and competency of the nurse in attendance, the questions remaining to be considered are: 1. Whether there was actual negligence on the part of the physician and nurse in question ; and 2, whether the hospital authorities were negligent in not providing a physician to sit up at night to watch the patients, and in not providing more than one nurse in the ward. These questions may be examined together, because they are to be determined by the same consideration, viz.: whether the circumstances of the case required more attention than was actually bestowed upon the deceased, or upon the cases in the ward in question at the time of this accident.

This question may be viewed from the standing point of the plaintiff’s contention, that the hospital would be liable for the actual negligence of its physician and nurse, without regard to the fact that it had exercised due care in their selection. This is questionable upon the authorities, for, in regard to the liability of a corporation for the acts of its servants, a distinction is made with respect to public charitable hospitals, it having been held, with good reason, that they are not liable for injury to a patient caused by the acts of their agents, where it is shown that they have exercised due care in selecting such agents. Pryor v. Manhattan Eye & Ear Hospital, 4 N. Y. Law Jour., 450, Nov. 25, 1890 ; McDonald v. Massachusetts General Hospital, 120 Mass., 432. The last case is cited in Laubheim v. DeKay N. S. Co., 107 N. Y., 230 ; 11 N. Y. State Rep., 469, where, in respect of a steamship company carrying passengers, it was held if the carrier is to provide a surgeon for its ships, its duty to the passenger is to select a reasonably competent man for the post, and it is liable, only for a neglect of that duty.

The hospital authorities in making rules for night attendance by physicians, and for personal inspection and watching of patients, in providing the force of night nurses, was bound only to the degree of care proportionate to the danger to be apprehended, judged by the condition of affairs before the happening of the accident. “ That which never happened before, and which, in its character, is such as not to naturally occur to prudent men to guard against its happening at all cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.” Hubbell v. City of Yonkers, 104 N. Y., 434 ; 5 N. Y. State Rep., 730.

There is no negligence in not making other arrangements, when there is no reason to apprehend an accident such as occurred. Loftus v. U. F. Co., 84 N. Y., 455 ; and there is no liability, except for the natural or probable, and, therefore, the direct consequences of the acts complained of.

There is nothing in this case to show that the house surgeon, or the nurse in attendance, or the hospital authorities, had any reason to apprehend any mental aberration of the deceased, much less the particular accident of the night in question. If the fact that the deceased attempted to get out of bed about one o’clock was sufficient to call for immediate attention, it was given.

The nurse reported the fact instantly to the physician, who immediately prescribed a sedative which was administered. After that the patient was quiet for about three hours, and there was no further ground for apprehension. If the attempt to get out of bed was indicative of mental disturbance, the fact that the patient listened to the nurse’s argument and complied with her remonstrance, showed that she was amenable to reason. But if there were any want of care in not placing a special watch upon the deceased all that night, to see that she did not leave her bed, the consequences of neglecting to do so were too remote to fasten legal responsibility upon the house surgeon, or the hospital authorities. An injury to her health, due to interference with the success of her operation by her incautious movements is the utmost that could, in reason, be apprehended.

Her death in the manner detailed, wras not to be expected. It was not shown that there was any possible ground for apprehending a suicidal tendency on her part. But there was, in fact, no care omitted. While the nurse’s back was turned for a brief period, the deceased stealthily rose from her bed, escaped from the room and leaped from the window. This was after the patient had been quiet for fully three hours. Even at one o’clock, when she had attempted to get out of bed, the nurse had left the ward altogether to go and inform the house surgeon, and yet the deceased had not then attempted to escape.

Upon all the facts of the case, therefore, it was proper to dismiss the complaint, as there was no proof of want of care on the part of the hospital authorities, the surgeon or the nurse. There were no rulings that prejudiced the plaintiff. .His exceptions should be overruled, and his motion for a new trial denied, and judgment ordered for the defendant

Bischoff and Pryor, JJ., concur.


text:
    George M. C. Ryers, Assignee. App’lt, v. David S. Tuska, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Statute op frauds—Not to be annulled by rules op stock exchange.
    In an action brought to recover on a contract for the sale of stocks, when no note or memorandum in writing was subscribed by the parties, no part of the purchase price paid and none of the property delivered, but both parties were members of a stock exchange whose constitution and by-laws provided that “any member who may fail to comply with his contracts, or who shall become insolvent, shall be suspended until he has settled with his creditors,” and that “ all offers to buy and sell stocks shall be binding,” Held, that such a contract is void under the statute of frauds, and no rule or by-law created by any association of individuals can circumvent or annul the statute.
    Appeal by plaintiff from a judgment of the eighth district court.
    Action by George M. G. Byers, as assignee oi Franklin B. Torrey, against David S. Tuska, in which the following opinion was filed by Jeroloman, J.: “ This case is brought to recover $127.10 on an alleged stock transaction. It appears by the evidence that on the 19th day of September, 1888, one Franklin B. Torrey requested the defendant in this action to purchase for him, through the name of. Norman J. Murray, thirty shares of the common stock of the Chicago, Milwaukee & St. Paul Bailway, at 64§ per share, amounting to $1,931.35. Mr. Torrey states that he made a memorandum on his book of the transaction, and that the defendant Tuska made a memorandum on his book also. There is no. evidence in the case showing that Tuska subscribed his name to any memorandum of that alleged transaction, and delivered the same to either Torrey or Murray. The statute of frauds provides that every contract for the sale of any goods, chattels, or things in action, for the price of $50 or more, shall be void, unless a. note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby, or unless the buyer shall at the time pay some part of the purchase money. In this case no memorandum of the contract was subscribed by the defendant Tuska, nor did Torrey pay any part of the purchase money to the defendant, Tuska. No part of the purchase money was paid, none of the property was delivered, and there was no note or memorandum of such contract made and signed between the parties. Such a contract the statute declares to be void, and no by-law or constitution created or established by any association or society of individuals -can circumvent or annul an express statute. No rule or by-law can be established by the Consolidated Exchange to take this case out of the statutes. The by-laws and constitution of an association, incorporated or otherwise, so far as the members are concerned, -can -only punish them by fines and penalties, and ex-pel them, and deny unto them all rights and privileges -of -the association provided by their constitution and bylaws. Article 15, § 1, of the ¡constitution of the 'Consolidated Exchange provides: 1 Any member who may fail to comply with his contracts, or who shall become insolvent, shall be suspended until he has settled with his creditors.’ So far as the association is concerned, that is binding between the members, and the courts will give full force and effect to it; but, wherein their constitution and by-laws conflict with <or assume to override express provisions of law, in that case the courts take no cognizance of' such constitution and by-laws. Until a paper writing is signed by the party to be charged thereby, and duly delivered, it does not become a - contract, within the statute-of ¡frauds. In the-case of Johnson v. Brook, 31 Miss., 17, the court say: ‘We have been able to find no case in which a writing signed by a party, and kept in ,his possession, without -delivery to the -other, ■has 'been held to be a compliance -with 'the statutes.’’ Also, in the case of Freeland v. Charnley, 80 Ind., 134, the court say,: ‘ Until delivery, there is not a spark of vitality in the instrument; it is -no '-more -than a mere piece -of paper, -covered with written or printed characters,-and possesses no more force than a poem or an historical essay, -locked in the desk «of the person described as -grantor.-’ Judgment is therefore rendered in favor of the defend■ant, dismissing the.complaint, with seven dollars-costs."

      Joseph M. Williams, for app’lt; Benjamin Tuska, for resp’t.
   Bookstaver, J.

—We have examined this ¡case with • care, but do mot find that the justice committed any error «either in his findings of fact or Ms application of the law to the -facts as found, and deem it necessary to add but little to what he has said concerning'the law governing the case.

It is clear there was no memorandum made-or signed by the parties -sufficient to -take the -transaction out -of the -statute of frauds at the time the verbal agreement was made. It is true that later in'the day the defendant handed up a notice that he would havO'to suspend, which was signed by him ; but ‘the evidence was entirely insufficient to warrant "the justice in finding that the memorandum Showing his contracts for the day, which was handed to the clearing ¡committee, was made by him or given to the committee by his authority. Consequently the case cannot be brought within Peabody v. Speyers, 56 N. Y., 230.

The contention that although the contract was void-under the statute of frauds, yet that it was binding between the parties under the constitution and regulations of !the-Consolidated Exchange, is based upon § 1 of art. III. of the by-laws governing dealings in railroad and -other securities, which provides that “ all offers to buy and sell securities shall be binding.” But this by-law was not introduced in evidence, and even if it had been, we do not think it would have availed the appellant.

In Shapley v. Abbott, 42 N. Y., 443, Earl, Ch. J., delivering the opinion of the court, said: “A party may, undoubtedly, without trenching upon public policy, waive the defense of usury, or -of the statute of frauds, or of the statute of limitations, by omitting to set up the defense when sued. And he may waive his statute exemption by turning out exempt property when the officer comes with the execution. But no case has occurred to me in which a party can in advance make a valid promise that a statute founded in public policy shall be inoperative. ’’

The same case is also conclusive of the appellant’s contention that the defendant is estopped from pleading the statute of frauds. If there is an estoppel at all, it is an estoppel in pais. This is used to preclude a party from obtaining by evidence that which he has before expressly or positively denied, or disproving that which he has expressly or tacitly admitted, when the other party has acted on the faith of the admission or denial in such a man* ner that he will be injured unless the same is held conclusive. An admission by a person as to the law, or as to the legal effect of his contract, is never held to estop him. It is also necessary that the fact should be one of which the party claiming the benefit of the estoppel was ignorant. There can be no such contention in this case. Both parties knew all the facts of the transaction at the time it occurred, and the admission, if any, was in regard to the law and not the facts.

The contention that the contract of sale had been executed and the statute of frauds could not be pleaded against it, as well as the contention that the defendant is liable for money paid out and expended at his request, are both founded upon the theory that the defendant was bound by the constitution and by-laws, and that the action of the proper committee of the Consolidated Exchange in completing the contract had a valid basis in law. But, as before shown, this was not the case, and therefore they cannot prevail.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.