author: Barrett, J.

text:
    Lyman C. Mason, App’lt, v. William F. Robison et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Appeal—Finding.
    The finding of the referee, in this case, that the plaintiff had no interest with the defendants in the contract sued on, was held not to be supported by the evidence.
    Appeal from a judgment in favor of defendants.

      J. jW. Parsons, for app’lt; Wager Swayne, for resp’ts.
   Barrett, J.

The plaintiff sued to recover a fifth share of the profits resulting from a contract for building the roadway of a western railroad. He claimed that the contract was made by the defendant Willard F. Robison in behalf and for the benefit of five persons^ namely, David Robison, Jr., James M. Ashley, William Baker, John Cummings, and the plaintiff; and that David Robison, Jr., for himself and Ashley, was to have 40 per cent, of the profits,, while each of the others, including the plaintiff, was to have 20 per cent. The defendants claimed that the contract was made solely for the benefit of Robison, Jr., Baker, Cummings and Ashley ^ and that Robison was to have 40 per cent, of the profits for himself, while Baker, Cummings and Ashley were each to have '20 per cent. In other words, the plaintiff claimed an interest of 20 per cent, in the contract, while the defendants contended that he had no interest whatever. The learned referee found in favor of the defendants, and dismissed the case so far as the main con-, tention was concerned. After a careful review of the record, we think the learned referee erred in this conclusion. The weight of evidence is overwhelmingly in favor of the plaintiff's claim. The learned referee was probably governed solely by the oral testimony, which, upon its face, and so far as the mere number of witnesses is. concerned, doubtless preponderated in the defendants’ favor. This preponderance, however, was not so great nor so sweeping as the respondents now claim. It is true that Robison, Jr., and Cummings both deny the agreement to which the plaintiff testified. Baker, however, was not equally positive, and his testimony amounted to little more than a want of recollection upon the subject. The other defendants really knew nothing about the alleged agreement. Ashley was not even present when it is said to have been made, and he did not see the plaintiff at the time. But, even if there were, as the respondents contend, concurrent denials of the agreement by all the defendants, the weight of evidence would still be with the plaintiff, for there is documentary evidence clear and conclusive enough to outweigh either the denials or the treacherous memories of interested witnesses. The plaintiff proposed the scheme of the railroad in question. He was, with the defendants Robison, Jr., Baker, Ashley, and Cummings, one of the original incorporators. He devoted himself diligently and faithfully to the success of the enterprise, having charge of important matters at the west end of the line, while Robison, Jr., attended to the east end. The voluminous correspondence between him and Robison, Jr., outlines the extent and character of his duties, and forcibly indicates that he was one of the parties in interest. In one of the letters Robison, Jr., speaks of him as “ one of us, and interested in the construction of the road.” He made personal advances to assist the enterprise. He also induced the bank of which he was vice president to make large advances. He indorsed paper for -the purpose of raising money at another bank. He made efforts to obtain subscriptions, aid notes, and rights of way. He was urged to push the enterprise. He was in constant communication with Robison, Jr. In brief, he rendered such continuous and important services as to exclude any other rational conclusion save that of deep - personal interest. The suggestion that he did all this as a public-spirited citizen of the town which was to be benefited by the railroad, and because his real estate in that town might be enhanced in value by the .enterprise, is far-fetched and puerile. His acts throughout, and the corresponding acts of the other parties with relatio'n to him and to what he was doing, plainly indicate that he was, as Robison, Jr., said, “one of them.” But the case does not rest upon the extreme probabilities which the correspondence and the acts of the parties evince, for we find a direct recognition of the plaintiff’s interest in two important documents. The construction contract was between the railroad and a firm named McCracken & Go. At first it was intended that Cummings should act as representative for the parties in interest, but subsequently Willard F. Robison’s name was substituted. Before this was done, Robison, Jr., the plaintiff, and Baker signed a guaranty to Mc-Cracken & Co. of any contract Cummings might make with them. Upon the same day the following agreement was entered into by the plaintiff and Baker, Robison, Jr., and Cummings:

This memorandum of agreement witnesseth that, whereas, John Cummings, of Toledo, proposes to take a contract from the Toledo, Saginaw and Muskegon Railway Company to build their line of road from Muskegon to Ashley in Michigan: Now, in consideration of his entering into said contract, and of one dollar to us paid, we, the undersigned, agree to share with said Cummings in any loss that may be sustained in carrying out said contract, if any, and will each pay, as fast as may be necessary to cover such losses, in proportion to our several interests in such contract. ' •

Toledo Ohio, Sept. 14, 1886.

William Baker.

David Robison, Jr.

L. G. Mason.

John Cummings.

This paper would seem to be conclusive. The learned referee refers to it in his opinion, admitting that “the plaintiff must have then thought that he had some interest.” But all the signers must have thought likewise.- We think it a more reasonable conclusion that the plaintiff then knew that he had some interest, and that all the parties knew likewise. Why, otherwise, should the plaintiff bind himself at all ? And why else should he in terms bind himself “in proportion" to his interest in such contract. The defendants fully appreciate the significance, and, if unexplained, the conclusiveness, of this document; for they attempt to explain it by the suggestion that, although Mason then had no interest, he was intending to buy Ashley’s interest. But this is a shallow pretense. The agreement plainly speaks in the present, and of proportions relating to existing interests. The still more conclusive answer, however, to this attempted explanation is that Ashley had not offered his interest for sale at the time when the agreement was signed, nor did he do so until long afterwards. "We have closely scrutinized the evidence on this head, and we think it fully bears out the plaintiff’s contention as to the time when first there was any question of the purchase of Ashley’s interest. The second document is even more .specific. In March, 1887, the plaintiff and Eobison, Jr., had a conference at. Grand Eapids. At that conference the following paper was prepared :

Grand" Eapids, March 28, 1887.

Eobison, 40 per cent ’ Cummings, 20 per cent.

Baker, 20 per cent. Mason, 20 per cent.

Counting Ashley out.

G, 25,000

S, 7,400 Money

A, 7,500

39,900

37,833

77,733

2,333, Greenville.

8,000, Sheridan.

2,500, Ashley.'

25,000, Carson City.

37,833

40 1-2 miles

The lines containing figures here are in Eobison’s handwriting. The rest is in the plaintiff’s. Upon the trial'Eobison claimed that he did not see that part of the paper which related to the percentages at the time, nor until long afterwards. It appeared however, that in April, 1892, the same paper w.as produced upon the trial of another controversy, and that Eobison then testified that he thought Mason wrote his part of it in his presence, and that he certainly knew about it at the time. “ There is no question about that,” he added. In addition to all this, when the plaintiff finally asked for a settlement, claiming his interest, Eobison refused, not upon the ground that he had no such interest, but because, as he said, the plaintiff “would stand a very poor chance, in a court of justice, as he had just got a fee for selling his partners out to the Grand Trunk Eailroad.” Still later, when the plaintiff wrote to the three parties—Eobison, Jr., Baker, and Cummings—expressing a desire to meet Eobison in New York, and saying, “I desire to have our deal with the T. S. & M. E. settled up as speedily as possible,” be received a reply from Eobison, containing no denial of a deal, but simply saying that it would not be convenient for him to go to New York city. And . upon his cross-examination Eobison was asked the following question, and gave the following answer: “ Q. Why did you not' write to him fairly and squarely, then, what you would have us now believe, that he was demanding an interest, and he was not entitled to any interest? A. I cannot tell you why.” We need not pursue this subject further. In our judgment, the fact contended for by the plaintiff was overwhelmingly established. It follows that the judgment appealed from should be reversed, and a new trial had before another referee, to be appointed by the court, with costs to the appellant to abide the event;

All concúr.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Manhattan Railway Company, Resp’t, v. Sarah E. Youmans et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Costs—Review.
    A judgment for costs, awarded by tbe court, cannot be reviewed on taxation of costs.
    Appeal from an- order denying a motion for a taxation of costs.

      H. A. Forster, for app’lts; Wm. FT. Godden, for resp’t.
   Per Curiam.

The judgment entered in this action appointing the commissioners having adjudged that the plaintiff was entitled to recover the costs of the trial, to be taxed by the clerk, left no discretion in the clerk as to whether costs were properly allowable or not. Costs having been awarded by the court, there is no power to review and reverse this judgment upon a taxation of costs. If the parties are of the opinion that because of the stipulation they should not be charged with costs, their only remedy is either a motion to correct the judgment, and an appeal from the order denying such motion, if it is denied, or by an appeal from the judgment. As long as the judgment stands directing the taxation o£ costs, under which the taxing officer acts, there seems to be no power to review such action, and. set it aside, because of reason which can in no respect affect his action.

The order appealed from, should be affirmed, with ten dollars costs and disbursements.


author: Eollett, J.

text:
    Germ-Proof Filter Company, App’lt, v. Pasteur-Chamberland Filter Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Pleadings—Complaint—Slander.
    A complaint, in an action for slander, which does not set out the words spoken, is bad.
    2. Same.
    A complaint, in such action, for injury to plaintiff’s business from saying that he falsely marked his goods “ patented,” must allege that plaintiff held a patent.

      Appeal from a judgment, dismissing the complaint on the ground that it did not contain facts sufficient to constitute a capse of action.

      Charles T. Haviland, for app’lt; William M. Ivins, for resp’t,
   Eollett, J.

The complaint is fatally defective in two particulars :

1. The particular words spoken' by defendant’s officers and agents are not alleged, and a complaint which does not set out the words spoken is liad. Ward v. Clark, 2 Johns. 10; Fox v. Vanderbeck, 5 Cow 513; Blessing v. Davis, 24 Wend. 100; Finnerty v. Barker, 7 N. Y. Leg. Obs. 316; Forsyth v. Edmiston, 2 Abb. Pr. 430; Cook v. Cox, 3 Maule & S. 110; Harris v. Warre, 4 C. P. Div. 128; Townsh. Sland. & L. (4th ed.) 329; Starkie Sland. & L. (3d Eng. ed.) 343; Id. (Wood’s ed.) 425; Odgers Sland. & L. 528; 13 Am. & Eng. Enc. Law, 456; Newell Defam. 640 et seq. Several cases cited also hold that this defect is not cured by a verdict.

2. The gravamen of the complaint is that defendant’s officers and agents said that the plaintiff’s filters were an infringement on defendant’s patent, and that they (plaintiff’s filters) were not patented, and were falsely marked “ Patented.” It is not alleged that plaintiff’s filter was patented. In actions for slander of title it is necessary for the plaintiff to allege and prove that he owned the property spoken of, and in an action to recover damages for saying that a particular article is not patented the plaintiff must allege and prove that it was. An allegation that defendant' falsely said that the plaintiff had no title, or no patent, is not equivalent to an, allegation that plaintiff had title or held a patent. In case words are not actionable, unless certain circumstances exist, these circumstances must be alleged in order to state a cause of action.

The count (eighth) for malicious prosecution need not be considered, for it is not alleged that the action complained of has been terminated in the plaintiff’s favor. Without considering the other questions raised, we think the complaint wus rightly dismissed, on the ground that no cause of action is stated therein.

The judgment should be affirmed, with costs.

All concur.


author: Follett, J.

text:
    People ex rel. Equitable Gaslight Company, Resp’t, v. Edward P. Barker et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Estoppel—Taxes.
    Commissioners of .taxes cannot be beard to say that their sworn valuation of the real estate was much less than its true value.
    2. Evidence—-Taxes.
    Capital stock dividends are not, though competent ' •the earning power of the corporate property. ice, proof of
    3. Taxes—Separate valuation.
    An overvaluation of personalty cannot be sustained because the real was undervalued.

      Appeal from an order, vacating and setting aside the assessment of personal tax .upon relator.

      William H. Clark, for app’lts; Coudert Bros., for resp’t.
   Follett, J.

The Equitable Gaslight Company, of the city of New York, is a corporation organized under the laws of this state, with a capital stock of $4,000,000, on which, in 1890 and in 1892, it paid dividends of 8 per cent, out of its earnings. The amount of the dividends paid in 1891, and during the years previous to 1890, is not disclosed by the record. In 1893 the .conpnissioners of taxes and assessments valued the real estate of the corporation at $1,527,300; patents and franchises, $500,000, — total $2,027,300. They deducted this sum from $4,000,000, the capital stock, which left a remainder of $1,972,-700, the value of the personalty of the corporation, upon which an assessment was laid. No deduction was made for the debts of the corporation. On the 9th of March, 1893, the corporation filed a verified statement with the tax commissioners, showing that the total value of its personalty was $1,041,483.43. This valuation included patent rights aud franchises, valued at $500,000, which, deducted from the total valuation of the personalty, left $541,-484.43. The statement also showed that the indebtedness of the corporation amounted to $2,839,192.98, which left no personalty liable to assessment. The commissioners refused to deduct any sum from their valuation of the personalty,—$1,972,700,—and laid a tax thereon.

In estimating the amount of the personalty of a corporation for the purposes of taxation, the just debts of the corporation must be deducted. People ex rel. Second Av. R. R. Co. v. Barker, 72 Hun, 126; 55 St. Rep. 186; affirmed, 141 N. Y. 196; 57 St. Rep. 834. The corporation, feeling aggrieved, obtained a writ of certiorari', returnable at a special term, for'the purpose of procuring the assessment on personalty to be vacated. The writ having been made returnable at special term in the first instance, we assume that the proceeding was taken under chapter 269, Laws of 1880, and not pursuant to § 821 of the consolidation act. The tenth section of chapter 269 provides: “ § 10. This act shall not be construed to appeal or abridge any other right or remedy given to review an assessment by any law applicable to any city or incorporated village, or by the charters thereof.”

It has been assumed in the cases that the remedy provided by chapter 269, Laws 1880, is applicable to assessments made in the city of New York, notwithstanding the section above quoted and § 821 of the consolidation act. People ex rel. Mut. U. Tel. Co. v. Commissioner of Taxes, 99 N. Y. 254; People v. Will St. Bank, 39 Hun, 525. Other cases might be cited in which assessments made in the city of New York have been reviewed under the act of 1880. The fourth section of chapter 269, Laws 1880, provides : “ § 4. If it shall appear by the return of such writ that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have power' to order such assessment, if illegal, to be stricken from the roll, or if erroneous or unequal, to order a re-assessment of the property of the petitioner, or the correction of such assessment, in whole or in part, in such manner as shall be in accordance, with law, or as shall make it conform to the valuations and assessments applied to other real or personal property in the same roll, and secure equality of assessment. If, upon the hearing, it shall appear to the court that testimouy is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.” ' '

By the return filed by the commissioners no issue of fact is raised, but, on the contrary, they returned: “ After receiving the statement submitted by the relator, the commissioners of taxes and assessments carefully considered the same, and accepted as true all of the statements of fact therein contained, and decided that the capital stock of the relator was unimpaired, and that the said capital stock was worth the sum of four million dollars ($4,-000,000).”

The statement referred to was verified March 9, 1893, by the relator’s vice president, and contained an itemized statement of all of its property, each item thereof being valued, and of its liabilities. The truth of this statement being admitted, there was no occasion for taking testimony before the court or before a referee; but it became the duty of the court to determine, as it did, the questions between the parties on the return; and it is now too late to urge that the relator should have given testimony in support of its application to be relieved of the assessment complained of.

It is also urged that the tax commissioners were not concluded by the statement, but were at liberty to disbelieve it. That may be,- but this position is without force in this litigation, because they returned, under oath, that they did believe the statement, and accepted it as true. Gras mains are assessable as real estate. Section 2, tit. 1, chap. 13, part 1, Rev. St., as amended by chapter 293, Laws 1881; People ex rel. Keystone Gas Company v. Martin, 48 Hun, 193; 15 St. Rep. 461. The tax commissioners are required to assess real estate at the sum for which such property under ordinary circumstances would sell. Section 814, Consolidation act. In other words, they are required to value property for the purposes of taxation, at its true value; and they cannot now be heard to say that their sworn valuation of the real estate was much less than its true -value.

It is urged that the dividends paid are proof that the valué of the property of the corporation was equal to the par value of its stock. Dividends are not proof of the earning power of corporate property, for sometimes—too often, it is feared—they are paid out of money borrowed; but they are competent evidence upon the question, what is the earning power of corporate property ? which 5s a feature to be considered in valuing such property for the purposes of taxation. Aside from the refusal of the commissioners to take into account the liabilities of the corporation in determining the amount which it should be assessed for personalty, the vice, if any there be in their proceedings, consists in valuing the plant of the corporation—its real estate—at $1,527,300, which appears to have been capable of earning an annual dividend of 8 per cent, on $4,000,000. Eealty and personalty are to be separately assessed, and, if personalty be overvalued and realty undervalued, the valuation of the personalty cannot be sustained on the theory that the undervaluation of the realty equals or exceeds the overvaluation of the personalty. People v. Barker, supra.

The order should be affirmed, with $50 costs and disbursements.

All concur.


author: Parker, J. O’Brien, J.

text:
    Louis Greve, Resp’t, v. Ætna Live Stock Insurance Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    Trial—Stipulation—Place.
    A stipulation, in a contract of insurance, limiting the place of trial to a-particular county is enforceable.
    Appeal from an interlocutory judgment entered on an order sustaining a demurrer to one of the defenses set up in the answer.

      T. W. McArthur, for app’lt; Robert Goeller, for resp’t.
   Parker, J.

This action is brought on a policy of insurance, the venue being laid in New York county. The answer alleged as one of its defenses that the policy of insurance upon which the action was based provided : “This policy of insurance is a contract made • and to be performed in Glens Falls, Warren county, New York, and should be construed only according to the laws of the state of New York and the company’s articles of incorporation ; and any suit or action, at law or in equity, for the recovery of any claim or enforcement thereof hereunder, shall be brought and maintained, and shall be sustainable only, in the courts of said Warren county, state of New York; and in any suit, action, or proceeding for the recovery or enforcement of any claim whatever, under any certificate or policy issued by said company, the place of trial shall be in the said county of Warren, state of New York.”

To- this defense plaintiff interposed a demurrer, which was sustained at special term,—whether rightly, presents the only question on this appeal. The position of the plaintiÉ was and is that, while he became a party tó a contract" which provided that any suit to enforce it should be brought in the courts .of Warren county, he is not bound by it, or rather that the court is not bound by it, because it is an agreement in advance to oust the court of jurisdiction ; and if the court for that reason refuses to recognize the agreement, and retains the case for trial in the county where plaintiff lived and caused the venue to be laid, the result desired will be as effectually accomplished. Our attention has not been called" to any decisions' in this state where the court has considered whether the stipulation of the parties will be permitted to determine the place of trial of actions. The question has received some attention in other jurisdictions, and without exception the decisions either directly sustain or tend to support the position taken by the court at special term. Nute v. Ins. Co., 6 Gray, 174; Hall v. Ins. Co., Id. 185; Amesbury v. Ins. Co., Id. 596; Boynton v. Ins. Co., 4 Metc. (Mass.) 212 ; Reichard v. Ins. Co., 31 Mo. 518; Guaranty Trust & Safe Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137; Insurance Co. v. Morse, 20 Wall. 445; Greenh. Pub. Pol. 466; Crane v. French, 38 Miss. 503. Unless there are substantial grounds of public policy requiring that' the courts shall refuse to recognize or enforce the stipulations of parties naming the counties in which such litigation as may arise out of the contract shall be tried, I see no sufficient reason for denying the right of parties to make and enforce such an agreement. In the leading case in support of respondent’s position (Nute v. Ins. Co., supra), the court introduced its discussion of the question of public policy as follows: ‘‘We place no great reliance upon considerations of public policy, though, as far as they go, we think they are opposed to the admission of such a defense.” While, on this appeal, the views of counsel upon the question involved were presented with much care, whether the contract is one against public policy was given but a passing notice. From such attention as we have been able to give to the question, it does not seem to us so manifestly .against a sound public policy as to make it the duty of the court to refuse enforcement of the stipulation in the contract relating to the place of trial. The suggestion that the court should resent this attempt to oust it of jurisdiction is unworthy of extended notice. The supreme court which administers justice in Warren county is the same supreme court as the one having general j urisdiction in law and equity in New York county. The legislature has not the power to deprive the supreme court of any portion of its jurisdiction, but it would not be pretended for a moment that, when it prescribed and limited the counties within which a resident plaintiff might bring his action, it was ousting the supreme court of jurisdiction, because, but for the restriction, the action might be brought in some other county. The further reason assigned is that the statute determines the counties in which an action shall be commenced, and the agreement of parties cannot be permitted to have the effect of a repeal of the statute for their benefit. The purpose which the statute has in view is to further the convenience of parties, and the benefits assured by statute may be waived as readily as other rights. The argument of the court in Re New York, L. & W. R. Co., 98 N. Y. 447, conclusively disposes of this question. In that case the owner of certain real estate which the corporation desired to acquire for railroad purposes entered into a contract with it, by which she agreed to sell and convey the premises, and the corporation agreed to purchase for a price to be ascertained in proceedings tó be instituted by the corporation under the general railroad act. The agreement named the commissioners which it was stipulated should be appointed in the proceedings. It reserved all rights of appeal given by law in such proceedings. Subsequently such proceedings .were instituted, the persons named in the agreement were appointed as commissioners, a hearing was had, and a report made, from which an appeal was taken to the general term, which reversed the award and ordered a new appraisal, but refused to appoint new commissioners, on the ground that the court had not the power. From that portion of the order refusing to appoint new commissioners an appeal was taken to the court of appeals. That court affirmed the order, and, in the course of its opinion, said : “But the agreement of the parties bound them, and concluded the court, in that proceeding; and the court was bound as between the parties, to observe, enforce, and carry out the agreement. Parties, by their stipulation, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional, rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance' policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal. And all such stipulations, not unreasonable, not against good morals or sound public policy, have been and will be enforced ; and generally all stipulations made by parties for the government of their conduct or the control of their rights in the trial of a cause or the conduct of a litigation are enforced by the courts.”

The order sustaining the demurrer, and the interlocutory judgment .entered thereupon, should be reversed, with costs and printing disbursements, and the demurrer overruled, with costs.

O’Brien, J.

(concurring).—Unless contrary to public policy or good morals, courts will enforce contracts as made by the parties, when reasonable and enforceable without public inconvenience. A stipulation or condition by a resident not to bring suit outside a particular county is not opposed to public or good morals. Whether reasonable, or enforceable without great inconvenience, will depend on the facts appearing. Here the condition is not assailed for fraud or mistake, it being conceded by the demurrer that the contract was deliberately entered into, without fraud or mistake. Conditions ousting courts of jurisdiction, or enforceable at the expense of great public inconvenience, have been declared inoperative. A condition such as is here involved has never been judicially condemned in this state, and I think it would be going too far to hold that parties may not freely and fairly enter into a contract which is not shown to be either unconscionable, unreasonable, contrary to public policy or good morals, and thereafter have it enforced as made. I therefore concur with Mr. Justice Parker.

Follett, J., did not vote.


text:
    In the Matter of the Application of The Manhattan Railway Company et al., App’lts, v. Julia A. Kent, Individually and as Trustee, etc., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    Costs—Condemnation proceedings.
    The defendants are entitled to costs in a condemnation proceeding, in the absence of proof that an. offer had been by the petitioner, though the parties were unable to agree as to the price of the land to be taken.
    Appeal from an order of the supreme court, granting the defendants’ motion for costs and an extra allowance, and directing the modification of the final order so as to direct that the defendants recover their costs and allowance, and also from the final order in so far only as it is modifie'd by the former order.

      William E. Godden, for app’lts; A. B. Oruikshank, for resp’ts.
   Per Curiam.

We see no reason for interfering with the order appealed from. The statute is explicit in its terms defining the circumstances under which parties to these proceedings are entitled to costs. It is true that there was an adjudication of the superior court that the parties were unable to agree as to. a price, but there is no allegation in the petition or any evidence that any offer had been made which could possibly relieve the petitioners from the payment of costs.

Under these circumstances, under the statute, the defendants were entitled to the costs which were allowed them by the court.

The order should be affirmed with ten dollars costs and disbursements. . *

Present: Van Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of The Manhattan Railway Company et al., Resp’ts, v. Julia A. Kent, Individually and as Trustee, etc, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    Costs— Condemnation proceedings—Trial.
    The proceedings before the condemnation commissioners are not the trial contemplated by the statute.
    Appeal from an order of the supreme court denying the defendants’ motion for a review of the taxation of the costs in these proceedings.
    These condemnation proceedings were commenced by the filing of a petition and notice on February 26, 1894. Such proceedings were had that on March 19, 1894, it was referred to a referee pursuant to § 3367 of the Code of Civil Procedure, to hear and determine the truth of the allegations contained in the petition. Thereafter such proceedings were had before the referee that this report was made and filed, and thereupon a judgment and order were made adjudging that the condemnation of the real property-described in the petition was necessary for the public use, and appointing commissioners to ascertain the compensation to be made to the defendants therein. Thereupon the commissioners met, the parties appeared before them, eight meetings were held and twenty witnesses were examined. Evidence was given by the plaintiffs’ witnesses tending to show that no compensation should be allowed.
    On May 28, 1894, the report of the commissioners was filed in the office of the clerk of the county of New York, whereby the defendants were awarded $750 as compensation, and such report was thereafter confirmed.
    By the final order entered in such proceedings, as amended, it was adjudged that the defendants recover costs of the proceedings, together with five per cent, extra allowance, to be taxed at the same .rate as where the defendant is the prevailing party in an action in the supreme court. Thereafter the defendants presented a bill of costs which contained, among others, the following items: Trial fee, issue of fact, thirty dollars; allowance by statute, sixty dollars; trial occupied more than two days, ten dollars; and a disbursement, county stenographer, minutes, nineteen dollars and sixty cents; all of which items were struck out of the defendants’ bill of costs by the clerk of the court upon the taxation of costs. The defendants thereafter moved for a review of the taxation of costs by the clerk. Their motion was denied, and from the order denying such motion this appeal was taken.

      A. B. CruiJcshanlc, for app’lts; William B. Qodden, for resp’ts.
   Per Curiam.

The proceedings before the condemnation commissioners were not the trial contemplated by the statute. Such proceedings were a mere assessment of damages. The trial spoken of in the statute is that which takes place preliminary to the appointment of commissioners.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present: Van Brunt, P. J., O’Brien and Follett, JJ,

Order affirmed, with ten dollars costs and disbursements.


author: Parker, J.

text:
    In the Matter of the Appraisal for Taxation of the Estate of Catharine A. Taylor, Deceased.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)
    Tax—Transfer—Exemptions.
    Foreign religious corporations are not exempt from the transfer tax.
    Appeal, from an order of the surrogate’s court, affirming an order of the surrogate, assessing a transfer tax upon the estate of the decedent.

      Bamilton Wallis, for app’lt; Benjamin F. Dos Passes, for resp’t.
   Parker, J.

The Elberon Memorial Church, a religious corporation, organized under the laws of the state of New Jersey, complains of a decision of the surrogate adjudging that a legacy of $100,000, bequeathed to.it by one Mrs. Taylor, is subject to a transfer tax of $5,000, pursuant to chapter 399 of the Laws of 1892. The provision of the statute upon which reliance is based to both overthrow and support the decision of the court below reads as follows: “But any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from, and not subject to, the provisions of this act.”

As the appellant is a religious corporation, it insists that the exemption from the tax of “ any religious corporation ” necessarily permits a transfer of the legacy bequeathed to it free from the burden which officers charged with,the duty of administering the statute would fasten upon it. In support of this contention authorities are cited establishing certain rules of statutory construction which it is contended are applicable to the statute before us, and we are invited to apply them as if the question were now for the first time presented to a court for determination. But, as we read the decisions, the question, so far as this court is concerned, is at rest. In re Smith's Estate, 59 St. Rep. 56; 28 N. Y. Supp. 476, decided in April last by the general term of the fifth department, the proposition before us was presented and decided. In that case there were bequests to three foreign mission societies, incorporated under laws other than of the state of New York, and the court said: “ As there is an absence of any plain indication in the act that it is intended to apply to foreign corporations, we are inclined to hold that, under the doctrine of the Prime Case, the thi’ee societies named are liable to the payment of the legacy tax.”

The Prime Case 136 N. Y. 347; 49 St. Rep. 658, it is true, did not arise under chapter 399 of the Laws of 1892. That statute had gone into effect long before the case was presented to the court of appeals, but the question arose under chapter 553 of the Laws of 1890, -amending chapter 191 of the Laws of 1889. Section 1 of said act, as amended, provided that “ any religious, educational, Bible, missionary, tract, literary, scientific, beneyolent or charitable corporation * * * may take and hold * * * property not exceeding in value $3,000,000. * * * r. The personal estate of such corporation shall be exempt from taxation,” —and that “1 An act to tax gifts, legacies and collateral inheritances in certain cases,’ and the acts amendatory thereof, shall not apply thereto, nor to any gifts to any such corporation by grant, bequest or otherwise." It will be observed that in Prime's Case, as in the one before us, the statute described in the corporation which should be entitled to the benefits provided by it as “any religious ” corporation. But the court held that the legislature intended only to confer exemption upon the -legacies bequeathed to domestic corporations. The court said: “We are of the opinion that a statute of a s,tate granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state, and over which it has the power of visitation and control., Such is the natural interpretation of such legislation in the absence of a contrary intention appearing on the face of the act. The legislature in such cases is dealing with, its own creations, whose rights and obligations it may limit, define, and control.”

The court of appeals had before it the statute under which the surrogate assessed the tax upon appellant’s legacy in Merriam's Estate, 141 N. Y. 479; 57 St. Rep. 593. The question in that case was whether a bequest to the United States was subject to the. tax imposed by the act. The court, in the course of its argument, said: “ This court has held that the provisions exempting the religious, charitable, and other corporations named in the inheritance tax acts apply only to domestic corporations.”

A.nd, having asserted the proposition that under the statute only domestic corporations are exempt, the opinion next proceeds to overthrow the contention of the appellant that the United States is to be regarded as a domestic corporation so far as the state of New York is concerned. Thus reasoning, the conclusion was reached that the United States, if regarded as a corporation, was not included among the corporations entitled to receive legacies free from the transfer tax.

These .decisions, we think, fully support the decision of the surrogate.

The order should be affirmed, with costs.

All concur.


author: Yan Brunt, P. J.

text:
    Martha Morris, Resp’t, v. The Strobel & Wilken Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    1. Negligence—Res ipsa loquitur.
    Wliere personal injury occurs through the falling of a sign from defendant’s building, a prima facie case is made out by showing the fact of such injury, without further affirmative evidence of negligence.
    2. Same—Duty of owner.
    In the erection and maintenance of such appendage, the owner-is bound to secure the same, so that it will not only be equal to the ordinary known vicissitudes of the weather, but will be able to withstand the force of gales which experience has shown to be liable to occur.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      F. A. Thomson, for app’lt; Leonard J. Langbein, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover damages sustained by the plaintiff by being struck by a sign which had been attached to the defendants’ building, and which fell and struck the plaintiff. There was no question but that the sign belonged to the defendants, had been put up by them in front of their building, and that it fell on the day in question; and the jury found that it struck the plaintiff, and that she was severely injured thereby. The court beld upon the trial that the plaintiff had made out a case to go to the jury, without showing affirmatively that the sign in question had been defectively constructed ; and that the fact of its having been constructed by the defendants and attached to their building, and that it fell in the public street, without any apparent reason for so doing, called upon the defendants to show that they were without fault. It is urged upon the part of the defendants, however, that the learned court erred in the rule in respect to negligence in that the case at bar was not one in which the maxim “Res ipsa loquitur,” was applicable, and that the rule has been established that this maxim does not apply except where contractual relations existed between the parties. It is undoubtedly true that expressions may be found in opinions to support the contention of the appellant, but an examination of the adjudications upon the subject show that it is not a correct statement of the law. A leading case upon this subject is that of Kearney v. Railroad Co., L. R 5 Q. B. 411; same case in the exchequer chamber, L. R. 6 Q. B. 759. The facts were that the plaintiff was passing on a highway under a railway bridge, when a brick fell, and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron girder bridge, resting on iron piers on one side, and a perpendicular brick wall, with pilasters, on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a nonsuit, on the ground that there was no evidence of negligence to leave to a jury. The court of queen’s bench, by a divided vote, held that this was a case to which the maxim, “Res ipsa loquitur,” was applicable; ox1, in other woi’ds, that there was prima facie evidence of negligence. The principle stated was that whenever it is a defendant’s duty to use reasonable care to keep a bridge or other structure or premises in a proper condition as it respects persons passing along the highway, and these are out of condition, and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to use; and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident had arisen. This principle was unanimously-affirmed in the court of exchequer chamber. In Byrne v. Boadle, 2 Hurl. & C. 722, the facts were that an injuiy was caused by the falling of a barrel into a highway from the window of a shop. In discussing the question of the proprietor’s liability, Pollock, C. B., said: “ There are many accidents from which no pi'esumption of-negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out; and I think such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence.”

In Mullen v. St. John, 57 N. Y. 567, various other cases are cited in addition to these, illustrating the same rule. Therefore, when the plaintiff was passing along the public street, she was entitled to immunity from injury by the dropping of apendages to buildings erected along the same; and when she was injured by the fall of such an appendage it became the duty of the owners of that appendage to sbow that they used reasonable care in its construction and maintenance, and that the accident happened without any fault or negligence upon their part. In the case at bar an attempt was made to show that this accident occurred by reason of a high wind which was prevailing at the time, and that it was, therefore, to be considered as an act of God, for which the defendants could not be held responsible. The evidence in' the case showed that at the time of the happening of the accident the wind was blowing afc the rate of about nineteen miles an hour, and that it increased, subsequently, to twenty-five miles an hour, and three or four hours later to thirty-one miles an hour. It further appears that s. wind of nineteen miles an hour is not an unprecedented one in this city, but one which frequently occurs, although the average rate of wind during the summer months is from eight to nine miles an hour, and during the winter months from eleven to twelve miles an hour. It appeared further that a wind from twenty-five miles an hour up is known as a high wind.' This evidence shows beyond question that there was no extraordinary stress of weather, and that the falling of the sign was not to be attributed to .any such cause. In the erection and maintenance of these appendages the defendants were bound to secure the. same so that they would not only be equal to the ordinary known vicissitudes of the weather, but would be able to withstand the force of gales which experience has shown to be liable to occur. The defendants in this action have wholly failed to meet these requirements. They have shown how this sign was atta'ched to ■ their building, and the manner in which it was secured; but we are left in utter ignorance as to whether it was constructed in a manner proper for the use to which it was put, as no evidence was offered upon this point, and .it is apparent from the fact that it fell in a moderate wind that it was insufficient for the use for which it was constructed. It is’also claimed upon the part-of the defendants that the damages were excessive. Without discussing at length this proposition, we do not see, upon an examination of the evidence, that we can interfere with the verdict of the jury upon this ground.

Judgment and order appealed from should be affirmed, with costs.

Barrett, J., concurs; Parker, J., dissents.


author: Barrett, J. Parker, J.

text:
    Stephen U. Cadwell, Resp’t, v. Marks Arnheim, App’lt

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

      1. Negligence—Runaway horses.
    Where horses are on the wrong side of the road, dashing directlv in front of a person who is on the proper side, it is only the duty of their driver, when he finds that he cannot stop them, to guide them, if possible, to the right, and thus to pass by without a collision.
    2. Same.
    If the driver uses due diligence and the best of his ability, as a skillful driver, to control them and cannot do so, then the law of the road does not apply.

      Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial on the minutes.

      G. Fine, for app’lt; A. B. Dyetl, for resp’t.
   Barrett, J.

The defendant was not held responsible for the runaway, but |or the negligence of his driver in not at the time properly guiding the horses. The evidence was conflicting upon the point whether horses, while running away, can be guided to the right or the left. There was enough to go to the jury upon this question, and they found that the defendant’s driver could have averted the collision by guiding his horses to the right. That is the case in a nutshell. The plaintiff was driving quietly and properly upon the right of the road, going south: The defendant’s horses were running away upon the left of the road, going north. The plaintiff could not get any further to the right, because of the presence of trees. He, in fact, was at the extreme right of the road. He could not safely turn to the left. That would have increased his danger. Indeed, it would probably have been fatal, in view of the proximity of the defendant’s horses and the speed with which they were approaching. The' defendant’s horses were upon the wrong side of the road, dashing forward directly in-front of the plaintiff, who was, as we have seen, upon the proper side. It was plainly the duty of the defendant’s driver, when he found that he could not stop his horses, to guide them, if possible, to the right, and thus to pass the plaintiff without a collision. As the evidence was sufficient to justify the jury in finding that the defendant’s horses could have been thus guided, and that the driver failed to make a proper effort in that direction, the verdict should not be disturbed.

The evidence failecf to substantiate the defendant’s contention that the plaintiff was himself guilty of negligence. On the contrary, the burden of showing freedom from contributory negligence was fairly met by the plaintiff. In fact, there was nothing which, under the circumstances, the plaintiff could possibly do which he did not do. Had he done what the defendant insists he should have done, he would have been far more amenable to .criticism. It would have been shockingly bad judgment to risk a turn to the left at such a critical moment, and the. result wo.uld probably have been far more disastrous than it was. The plaintiff had a right to expect that the defendant’s driver would make an effort to guide his horses to the right: He cannot well be blamed, therefore, for not guiding his' own horses in such a way as, had the driver fulfilled his'just expectation, would certainly have precipitated a violent and. doubtless fatal collision.

The exceptions taken by the defendant to the reception and rejection of evidence were, in the main, unimportant. But none of them raises any question of substantial prejudice.

As to the charge, we think the case was fairly and correctly submitted to the jury. The defendant insists that it was error to charge certain of the plaintiff’s propositions to the effect, in substance, that, if the defendant’s driver was guilty of negligence, “the plaintiff was entitled to recover.” It is contended that the question of contributory negligence was thus withdrawn from the jury. But it is evident from the entire charge that this was not intended ; nor could the jury have so understood it. The learned judge repeatedly instructed the jury that, if the plaintiff was guilty of contributory negligence, he could not recover. In one part of his charge we find the following statement of law : “ It is necessary, in order that he recover, that he should satisfy the jury that this collision was caused by negligence on the part of the defendant’s coachman, and that he, himself, was free from fault, and that his own negligence did not contribute to the ■accident; and the burden of proof is upon him to satisfy you.upon these points.”

In another part of his charge he says: “As I have already stated, it is undoubtedly true, as a matter of law, that a plaintiff who is in fault himself, and who has not exercised ordinary care, cannot reco.ver in a case of this description; and I shall, in this case, leave it to the jury to say whether there was any want of ordinary care on the part of the plaintiff.”

And, again, in summing up upon the whole case: .“The jury have heard all the testimony, and have heard the comments of counsel, and understand the situation, and I will leave it to them to say whether they think the plaintiff failed in exercising ordinary care under the circumstances. If he did not, he cannot recover; but if he did use the ordinary care that is to be expected of a driver under these circumstances, and the coachman was guilty of negligence that brought on the collision, the plaintiff is entitled to recover.”

It is clear, therefore, that the expression Complained of in the plaintiff’s propositions related solely to the legal bearing, upon the defendant’s general responsibility, of the negligence of his driver. What was intended was to convey the idea that if the driver could, with proper effort and diligence, have turned his team to the right, and thus avoided the collision, the defendant’s negligence was made out. It must have been entirely clear to the jury that the proposition was in harmony with the learned judge’s colloquial charge, and they must therefore have understood that the proviso of that charge with regard to contributory negligence was, as a matter of course, the starting point of these propositions.

The defendant also complains of the following proposition, which, at the plaintiff’s request, the learned judge charged : “ It is conceded that, at the time of the collision between the plaintiff’s team and the defendant’s team, the plaintiff’s team was being driven on the right of the centre of the road in a southerly direction, and the defendant’s team was being driven to the left of the center of the road, in a northerly direction.”

It was conceded that the plaintiff’s team was being driven upon the right of the road, going south, and that the defendant’s team was running away upon the left, going north. The complaint relates to the use of the words “was being driven’’ as applicable to the defendant’s team. This complaint seems to be frivolous. The jury could not have failed to understand what was meant. Indeed, the driver still held the reins, and, in a general sense, was driving, though not as well as he should have driven.

The defendant also urges that the learned judge should not have charged that the defendant’s .team .was unlawfully and improperly on the left of the center of the road. But that was simply an abstract proposition, emphasizing the general law of the road. The concrete proposition, affecting the case under consideration, was put to the jury most favorably to the defendant when the learned judge subsequently at his request, charged as follows: “That if these were runaway horses, and not under the control of the driver, and the driver used due diligence and the best of his ability as a skillful driver to control the horses, and could not control them, that then the law of the road as to which side the horses ran on after the fright does not apply.”

So as to the charge with regard to the presumption of negligence attaching to a violation of the law of the road. This was correct. Shear. &. It. Neg. §§ 13, 650-652. But this was also an abstract proposition, as the case was put to the jury solely upon the negligence of the defendant’s driver in not guiding his horses to the right, and thus avoiding a collision, as he might have done.

There are no other points with regard to the charge worthy of special consideration. We find no error to the prejudice of the defendant,—none which would justify a reversal. The judgment and order denying the defendant’s motion for a new trial should be affirmed, with costs.

Van Brunt, P. J., concurs.

Parker, J.

(dissenting).—I do not concur in the view that the evidence entitled the plaintiff to go to the jury. Prior to the runaway which resulted in serious injury to the plaintiff’s horses and wagon, defendant’s team had been much used, and had proved to be gentle, free from fright, and without any kind of fault Defendant’s driver was a man of large experience in driving and handling horses, and his competency is not questioned. When defendant’s family started out for one of their accustomed drives through Central park on the occasion in question, the victoria was in the best of order, the harness was in good condition, the horses were properly hitched, and the driver was properly mounted in his seat on the victoria, with the reins well in hand.' Tip to this point, therefore, no basis can be found for charging the defendant with negligence. But it is said the driver could have averted the collision by guiding his horses to the right, and that, because of his failure to thus obey the law of the road, the master is liable for the damages which resulted to plaintiff. If it be the fact that the presence of the runaway horses on the wrong side of the road was due to the fault of- the driver, the proposition is sound; otherwise not. As the driver was in great peril, and menaced with frightful possibilities of injury to the occupants of the carriage and himself, whether he was at fault in failing to guide the horses to the right cailíiot bé determined by the test which applies where opportunity is afforded for the calculation and exercise of judgment, unhampered by fear. But the distinction need not be insisted.upón J for, as I view the évidence, if it should be assumed, ás the prevailing opinion bf the court necessarily does, in effect, that defendant i$ liable if it was within the bounds of possibility for the driver to have guided the team to the right, the plaintiff should not have recovered, because the undisputed evidence was that the driver did his best to so guide them, and failed. He said : “ I was 'on the right hand side of the drive at that timé, going north. The ladies were in the carriage. It was a victoria, and I was on the box, Before the fright of the horses, I was doing and driving as usual. I had hold of the litres in the usual way. I was going down grade a little. That was about Eighty-Sixth street, and there was a single horse, what I call a ‘trotter-,’ coming up. The trotter was coming south, coming meeting me, and I dpn’t know whether the gravel went from the wheels, or front the horse’s foot. It went up on my nigh-side horse’s back, and he kicked up, and his leg went over the pole, and they ran away on me. They fan straight as far as the road was straight, and thén, when they came to the corner, they went to the gutter. I tried with all my might to pull them out .of the gutter, and could not do it. * * The trotter was coming down; was coming meeting me. The trotter was coming to my left. The sand that was thrown up struck the neár-side horse,— the one on the left. It was the horse on the west side that the gravel struck. * * * When the stone or sand struck the hofse, I tried to steer them and stop them. I managed my lines with both hands. I kept them on my own side as far as the road went straight, but, when they came to the corner, they went straight on, and I could not get them out. They went to the gutter, .and I pulled them, on the off horse, with all my might, and I could not get them out of there. I pulled and was pulling and doing all that I possibly could all the time to stop .them and steer them.”

The witness was not a party to the action. He was in no respect discredited. His testimony was not disputed by any witness, either directly or by stating circumstances permitting a contrary inference; but an attempt was made to create an íssué of fact by the testimony of so-called “experts.” They were called upon to testify that runaway horses could be guided. Before referring to their testimony, it should be said that the fact was established beyond controversy that, before commencing to run, one of the horses got his lég over the pole, where it remained until after the collision.

John B. Darr testified that runaway horses could be guided, although it was impossible to stop them. When asked whether a horse would not try to pull his leg off the pole, and thus draw it towards him, he answered: “All the horses I.ever had over the pole always tried to kick and get the leg back again,’’

That defendant’s liohse did not try to do, and therefore this expert’s experience did not included a similar case.

John S. Ferguson, the onlyf other witness who gave a Similar opinion, said that his personal'opinion was confined to four runaways, and he admitted that he never had a horse get his leg over the pole.

Plaintiff’s witness Dr. Cattnacht said : “ And it is a fact that a horse, taking fright and getting his right leg—off hind leg—over a pole, and still laboring under the fright, will pull With ah effort to get his leg from over the pole ■; will so pull in a direction opposite to the pole. In such a case the bit will not control the horse, but his body will pull the team in a direction opposite to the pole. * * * I have seen the leg over the pole; yes, sir. A horse with the leg over the pole. The leg Over the pole would goad the other horse to madness, * * * and frighten the other horse, you will observe; and that is the way I saw it when I have seen it. * * * I have seen such running away that could be stopped by the driver, and I have seen it when it could not be stopped. It depends on the spirit of the horse. If a horse has his leg over the pole, the other horse would carry him. * * * His leg which is over the pole would be stretched out towards the other horse, * * * and, when he came in contact with the other horse’s leg, he would be apt to frighten the other horse. Then the other horse would run. I don’t think that the .force which would take the horse with his leg over the pole along would carry the carriage to the right, because your dead weight is on the left. * * * I don’t think you could turn him, sir. I don’t think you could turn him to the right. I have seen them run a quarter of a mile that way.”

John Murphy, another witness called by the plaintiff, testified that he had been a park policeman since 1885, and had caught as many runaways as any man in the service : “ It is my expérience that, when a frightened team is running away with one of the horses having his hind leg over the pole, it is impossible for the driver, no matter how skillful, to control or direct the team with the lines. It is impossible. It is impossible without some assistance, or unless the horse will bring his leg back from over the pole. I have had several cases of it.”

Ee-direct examination by Mr. Dyett: “ Q. Officer, do you mean that when a horse gets his leg over the pole, that you cannot guide him, or that you cannot stop him 1 A. Yes, sir; I mean that the coachman has no power over him at all. Q. What? A. I mean that the driver has no power over him at all. Q. HoW' do you mean? A. No power at all over him, for to pull them horses up. Q. To pull him up ? A. No. Q. That is, the horse will go where you guide him until he gets his leg from—# A. Go ? He will kick; he will do mischief; will tumble,—everything. He is out of control. I have bad as many, I Venture to say, as twenty or thirty of them, of "that kind of runaways.”

It seems to me absurd to say that the opinions of two alleged experts as to the possibility of guiding runaway horses, ©ne of whom never had a case where one of the horses had his leg over the pole, and the horses of the other always kicked to get off the pole, put in issue the positive testimony of the driver that he tried with all his strength to guide the horses to the right. If this position be right, defendant’s motion to dismiss the complaint should have been granted. But, assuming that the driver’s testimony of what was done was put is i§sue by Darr’s and Fei'guson’s opinions as to what can generally be done, still a new trial should be granted, because of the refusal of the court to grant a new trial on the ground that the verdict was against the weight of evidence. Against Darr’s and Ferguson’s opinions were pitted, not only the opinions of plaintiff's witnesses Dr. Cattnacht and John Murphy,' to which reference has already been made, but also the opinion of other witnesses of equal or greater experience.

George B. Arnold, a foreman in a livery stable at 141 East Twenty-Third street, and a practical coachman, etc., for 22 years, said it is impossible for any driver to stop or control a runaway frightened team of good horses with one of them having a hin^ leg over the pole, and that he has had such cases himself.

Henry C. Overin, a livery stable man, now in business in Forty-Second street and Seventh avenue, and also on Broadway, between Forty-Fifth and Forty-Sixth streets, a member of the firm ofOverin & Market, in the business and a practical driver himself for 25 years, and who has had much experience with runaway horses himself, said horses frightened and running away cannot be managed or controlled or stopped, especially if one of the team has his leg over the pole. “ You cannot guide a runaway horse, even is the leg is not over the pole.”

Isaac Strauss testified that he was in the horse business, had driven horses all his life, considered himself a good horseman and had had horses run away with him. Whether horses running away could be controlled, he said, “Well, I have never had the experience that I could control a horse when he is frightened, if he loses his head and cannot be controlled. A horse is a good deal stronger than a man. He is a good deal stronger than five men. Q. When ahorse is frightened, and is running away, he don’t obey the rein, does he? A. His mouth becomes numb, and you cannot pull him anywhere ; it is impossible. Q. Have you ever seen a case where a team has taken fright, and one of the team gets his hind leg over the pole, and that team, in that condition, frightened, one leg over the pole, running away? A. I have, sir.”

Patrick Clark, a dealer in horses at 648 Broadway, American Horse Exchange, and a practical driver of coaches and private teams, who has driven first-class and valuable horses of all kinds, said: “ A pair of runaway horses, able-bodied, good horses, running away from fright, cannot be controlled or stopped by a driver, a skillful, good, competent driver; nor by any man. They cannot. I have experienced it.”

He further said : “ It is impossible for the defendant’s driver, on the facts shown by the defendant in this case, to have stopped ;or controlled the direction or speed of the defendant’s team.”

Dr. James Haley, a veterinary surgeon, who has driven many and very good horses, and has given much attention, made many observations, and had much experience as'to runaway horses, and gives instances, said;: “From knowledge of horses that I have from my profession of veterinary surgeon, and from my prior dealing with horses, and from driving myself, and from observing the driving of -both single and double, in my opinion it is not. possible for even the most skillful and able driver to control, by way of stopping or directing, the motion of a runaway team, which team can trot a mile in about three minutes. When the team is going.at the rate of 16 or 17 miles an hour, and down a little grade, one of the horses with his leg over the pole,—the hind leg' over the pole,—it is not possible, in my opinion.”

If plaintiff’s expert testimony tended to put in issue the testimony of defendant’s witness describing what was actually done by him' in his attempt to control the team, which I deny, still it was so fully met and overborne by other witnesses of equal experience called by plaintiff and defendant as to render a finding in hostility to the testimony of Frazin, who was not discredited in any way, clearly against the weight of evidence. That being the case, it is the duty of the court to reverse the judgment; and I so advise.


text:
    Max Danziger, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Trial—J ury—W aivbr.
    An objection that the issue is not triable by a jury, is waived by pro ceeding to trial before the jury without objection.
    Appeal from an order granting an injunction, unless within a certain time defendant paid to plaintiff a certain sum, as fee damages to his premises.

      Julien T. Davies and Brainard Tolies, for app’lts; Lewis Banders, for resp’t.
   Parker, J.

Section 970 of the Code of Civil Procedure, which provides when a party, as a matter of-right, is entitled toan order stating specific questions of fact for trial by jury, and providing that the findings of the jury upon each question so stated are conclusive in the action unless the verdict is set aside or a new trial is granted, -was by chapter 208 of the Laws of 1891, amended by adding at the end thereof the following: “ Where one or more questions arise on the pleadings as to the value of property or as to the damages which á party may be entitled to recover, either party may^apply upon notice, at any time, to the court for an order directing such questions to be stated for trial by jury.”

It was thereafter held by the local courts in a number of cases that it was the right of the defendants in suits similar in character to this to have questions relating to the value of the property, and to the amount of damages, determined bj1, a jury. The motion made by the defendants in this suit resulted in an order made November 18, 1891, stating two questions for trial by jury. The order read in part as follows: “ It appearing to the satisfaction of the court that certain questions arise on the pleadings as to the value of property and as to the damages which the plaintiff may be entitled to recover in said action, it is, pursuant to statute in such case made and provided, and on motion of Messrs. Davies, Short & Townsend, attorneys for defendants, ordered that the said questions be, and they hereby are, stated for trial by jury as follows.”

After stating the questions, the order further directed: “That this cause, for the purpose of determining the said questions so stated, be'placed upon the calendar of the circuit court, part II., to be held in and for the city and county of New York, at the county courthouse in the city of New York, for December, 1891.”

From this order no appeal has ever been taken, and in May, 1892, the questions came on for trial before -the court and jury. No objection was made to the court’s proceeding with the trial as directed in the order, and the parties proceeded as if the method of trial provided by the order was entirely regular. It resulted in a verdict not at all satisfactory to the plaintiff, whose counsel promptly made a motion upon the minutes of the court that it be set aside, which was denied. Subsequently, the suit came on for trial at special term, when the defendants caused the facts relating to the making of the order, the trial and the verdict, to appear upon the record, at the same time insisting upon the conclusiveness of the verdict until lawfully set aside. The court refused to so rule, and ignoring the verdict, rendered a judgment in hostility to it.

It is the rule in the trial of equity suits, where questions of fact are submitted to a jury, to follow the findings of the jury or not, as the conscience of the court may prompt, the verdict being treated as advisory. The learned trial court thought this rule applicable to the situation presented on this trial; and, reaching the conclusion that the jury had erred in their findings of fact, it refused to follow them, and, instead, made such findings as it thought the evidence required. Whether it was a mistake to treat the verdict rendered in this suit os a mere recommendation to the court, which it could follow or disregard, presents the question which we shall consider. Before the trial at special term, which took place in March, 1892, the court of appeals decided that the amendment to § 970 did not apply to suits of this character. Shepard v. Man. Railway Co., 131 N. Y. 215; 43 St. Rep. 117. Thus, it was established that the order in this suit was erroneous, and should not have been granted. ’ But while the court made a mistake in granting the order, and it is now clear that it would have been reversed on appeal, still the order was not wholly void. The court was one of general jurisdiction in law, and in equity, it had jurisdiction of the parties and of the subject-matter; and being called upon to determine whether, under § 970 of the Code of Civil Procedure, which provides that the findings of a jury upon questions stated thereunder shall be final, the defendants had the right to have certain questions stated for trial by jury, it decided that the pleadings in their statement of facts so far conformed to the requirements of the statute as to entitle the defendants to prevail on the motion; and the order into which this decision ripened became at once binding on both parties, and would necessarily so continue until vacated or set aside. But assuming, for the purpose of the arguments, that the order might have been safely ignored ; that the plaintiff, in his further proceedings, could havé treated it as if it were of no force or effect whatever,—the situation would be now none the less embarrassing for the plaintiff, for the fact is he did not treat the order as if it were void. On the contrary, he acquiesced in its binding force, by proceeding with the trial without protest or objection. Undoubtedly, it was plaintiff’s right, in the first instance, to have the court at special term, instead of the jury, pass upon the questions of fact. But that right, or any other, whether constitutional, statutory or otherwise, he could waive; and he did waive it by omitting to appeal from the order, and proceeding under it to trial before the court and jury, without protest or objection, down to the point where everything which the order provided should be done had been doné. Indeed, he did not even then- call in question the regularity of the procedure under the order. His motion was to set aside the verdict of the jury on the usual grounds, and not that the jury was without authority to pass upon the questions which had been submitted to them. The verdict rendered, therefore, was conclusive until set aside. The questions necessarily disposed of' in reaching the verdict were passed upon in another forum, it is true, than the plaintiff could have had, but, nevertheless, one which he had accepted as a proper one for the purpose after the making ■of the order, and therefore he was bound by the verdict until set aside. ' Not only at the opening of the trial, but later on, by proposed findings of fact and conclusions of law, the defendants called to the attention of the court the question we have discussed; and the executions taken thereto, as we think, present an error which requires a reversal of the judgment.

The judgment should be reversed, with costs to the appellants to abide the event. All concur.


text:
    James R. O’Beirne, App’lt, v. Spencer S. Bullis et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Specific performance—Damages.
    Where, if granted? 'a decree for specific performance will be unavailing-because of the defendant’s inability to perform, damages may be awarded.
    Appeal from a judgment dismissing the complaint <5n the -merits.

      Frank S. Smith, for app’lt; Adelbert Moot, for resp’t.
   Follett, J.

The facts found by the court upon uncontradicted evidence conclusively show that Spencer S. Bullis and Mills W. Barse perpetrated an atrocious froud upon I. B. Newcombe& Cothe trust company, and every person purchasing the bonds secured by the mortgage. It is found (findings 28 and 29) that the agents of I. B. Newcombe & Co. were escorted by Bullis, at the request of Barse, through large tracts of heavily timbered land in McKean county, near the railroads, who reported its value to the firm, by which report they were induced to attómpt to negotiate the bonds. A clear understanding of what the individual defendants intentionally accomplished cannot be better disclosed than to quote the findings of the court. Twenty-fifth finding: “That and before the making and execution and delivery of said several agreements the defendants Bullis & Barse pretended and represented to the said firm of I. B. Newcombe & Co. that the said 80,000 acres of land were timbered, free and clear of all incumbrances, and contiguous and adjacent to the line of the defendant railroad companjq as the same was then constructed and projected, and that said land was covered by a large quantity of merchantable timber, which would be. sufficient to, and would actually provide said railroad with at least seventy tons of freight' to the acre, for conveyance over said railroad at rates from 25 to 50 cents per ton in addition to the percentage accruing to said defendant railroad company from divisions with other lines.” Forty-sixth finding: “That of the lands mentioned and described in said mortgage, Exhibit D, 24,971.52 acres thereof, more or less, being warrants 3,708, 3,717, 3,719, 4,874, 4,872, 4,871, 4,917, 3,702, 3,710, 3,712, 3,718, 3,699, 4,335, 4,336, 3,722, 3,732, 2,396, 2,550, 4,913, 5,572, 5,556, 3,703, 3,422, 3,423, 4,875, 4,876, 3,706, 3,734, 3,711, 5,578, and lots 18 and 34, were not owned by said Bullis at the date of said mortgage.” Forty-seventh finding: “That the following warrants described in the mortgage annexed to the complaint herein were not timbered or had all timber removed off them, at the date of the execution of said mortgage, to wit : Warrants 3,734, 3,711, 3,702, ‘4,335, 4.336, 4,872, 4,875, 4,876, 3,422, 3,423, 5,573, 5,572, 3,703, 3,708, 3,717, 3,719, 3,699, 5,556, all in the county of McKean, state of Pennsylvania, and lots 41, 42, 43, 34, 35, 25, 27, 33, 18, and 26, located in the town of Red House, county of Cattaraugus, state of, New York.” Fifty-second finding: “That the defendant Bullis at the date of the execution of the mortgage above mentianed did not have the title to the soil of certain of the lands described in said mortgage, and the timber standing thereon, being warrants Nos. 3,708, 3,717, 3,719, 4,874, 4,872, 4,871, 4,917, 4,335, 4,336, 3,710, 3,712, 3,718, 3,699, 3,702, 3,722, 3,732, 2.396, 2,550, 4,913, lot 18, aggregating 15,800.92 acres, more or less.” Fifty-third finding: “That the defendant Bullis, at the date of the execution of the mortgage above mentioned, did not have free and unincumbered title to the following lands described in said mortgage, to wit: Warrants Nos. 5,572, 5,556, 5,573, 2.396, 2,550, 4,913, 3,706, 3,734, 3,711, 3,714, 3,731, 4,335, 4.336, 3,722, 3,703, 3,708, 4,817, 4,871, 3,717, 3,719, 4,872, 4,874, lot 34.” Fifty-fourth finding: “That of the lands mentioned and described in the said mortgage, Exhibit B, 1,900 acres thereof, being warrants 8,731 and 3,714, were owned by said Bullis at the date of said mortgage, and constitute a compliance with the covenants and agreements of the defendants Bullis & Barse.”

These findings are sufficient to show the magnitude and character of the fraud perpetrated by Bullis & Barse. By the forty-ninth and fiftieth findings it appears that much of the land mortgaged was of little value, and by the fifty-first finding, instead of such land being included in the mortgage, that land of at least $18 per acre should have been included -in order to constitute a compliance with the contracts of Bullis & Barse. These findings, in connection with the fact that 4,379 acres of land was valued by the appraisers at one dollar per acre, sufficiently show the value of the land included within the. mortgage. The learned trial court correctly held that a specific performance of the contracts could not be decreed because it did not appear that Bullis & Barse, or either of them, owned timber lands other than those described in the mortgage.

The ground on which the court refused to award damages, and dismissed the complaint, is not disclosed; but we assume it was on the theory that as equitable relief could not be granted the plaintiff was not entitled to legal relief—to damages. We take it to be too well settled to require the citation of many authorities that in case a plaintiff in an equitable action shows that he is entitled to equitable relief which, if granted, would be unavailing because of the defendant’s inability to perform, the damages sustained by the plaintiff may be recovered in the same action. Margarf v. Muir, 57 N. Y. 155-159. Miles v. Dover Furnace Iron Co., 125 N. Y. 294; 35 St. Rep. 14; Valentine v. Richardt, 126 N. Y. 272; 37 St. Rep. 12, It has been held in many cases brought to compel the specific performance of contracts that damages may be awarded to the plaintiff, though specific performance be refused. The right of this plaintiff, who purchased and owns. 10 bonds for $1,000 each, to maintain this action in behalf of himself and of all other bondholders is not seriously questioned, and was determined in Belden v. Burke, 72 Hun, 51; 55 St. Rep. 844.

It appears that the trust company on the 4th of April, 1893,— Three months before this action was begun,—declared, pursuant to article 3 of the mortgage, that the whole sum secured by it should become immediately due and payable. The plaintiff showed a sufficient demand upon the trust company to bring an action for the protection of the bondholders, and refusal, to entitle him to maintain this action. The judgment should be reversed and a new trial granted, with costs to appellant to abide the-event. All concur. . ' *


text:
    George F. Wiechers, App’lt, v. The Central Trust Company of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

      1. Appeal—Power op general term. .
    Where the trial court directs a verdict for several distinct items, the amounts of which are not disputed, and the exceptions taken at the trial are ordered beard in the first instance at general term, the latter court has power, where there is no conflict of evidence, to modify the- verdict by rejecting one or more of the items, and to direct the entry of judgment on the verdict as modified.
    2. Account stated—Stock.
    The plaintiff was held to be bound by the supposed sale of stock and the amount rendered thereafter and settled by acquiescence.
    Motion for a new trial on exceptions to be heard in the first instance at general term.
    In December, 1888, the plaintiff became the owner of 2,424 shares of the Sugar Refining Company, which stood in his name on the books of the corporation. Subsequently he transferred 500 shares to Franz O. Matthiessen, leaving 1,924 shares owned by plaintiff. In November, 1890, he purchased through Field, Lindley & Co., 876 shares, whicli were transferred on the books of the Sugar Refining Company, making 2,800 shares then owned by the plaintiff, and standing in his name. In July,-1890, a plan to form a contract was entered into for the purpose of terminating the affairs of the Sugar Refining Company, the defendant becoming a party to the contract, and assuming certain duties thereunder. On the 29th of October, 1890, a supplemental plan was proposed, by which a corporation to take the place of the Sugar Refining Company was to be organized, pursuant to the laws of New Jersey, under the name of the American Sugar Refining Company, with a capital of $50,000,000, one-half of which was to be common stock and one-half seven per cent, cumulative preferred stock, which corporation was so organized in January, 1891. In the plan of agreement of October 29,1890, it was, among other things, provided :
    “The shares of the American Refining Co. will be exchanged, share for share, for Central Trust Company receipts, representing certificates, one-half in preferred shares and one-lmlf in common shares. Each holder of the Central Trust Co. receipts for 100 shares (or fractions thereof in proportion) will receive: 50 shares of the American Sugar Refining Co. 7 per cent, cumulative preferred stock, 50 shares of the American Sugar Refining Co. common stock, and, in addition, 5 per cent, in cash ($500). "* * * All certificate holders who desire to participate in this plan may deposit their certificates at once with the Central Trust Co., when they will receive in exchange the Central Trust Co. receipts, which are, in turn, exchangeable for the stock of the new company. The time for the deposit of certificates is limited to December 1st, 1890."
    The .plaintiff became a party to these agreements and received from the defendant twenty-eight certificates for 100 shares each, of which the following (aside from certificate number) is a copy:
    “ 100 Shares. Certificate of Deposit. 100 Shares.
    ' OF THE
    Sugar Refineries. Company Certificates
    (hereinafter referred to as ‘ shares of stock’) deposited under an agreement between holders of the Sugar Refineries Company certifieates and Theodore A. Havemeyer, Franz O. Matthiessen, Jno. C. Searles, Jr., Joseph B. Thomas, Julius A. Stursberg, and Kidder, Peabody & Co., committee, and the Central Trust Company of New York, dated July 30th, 1890, and which agreement is hereby made a part of the undersigned certificate of deposit as fully as if the same were textually inserted therein.
    “ The Central Trust Company Shares.
    “No. 3,226. of New York 100
    hereby certifies that it has received from G. F. Wiechers one hundred shares of stock, as above stated, in trust, subject to the terms and conditions of the above-described agreement, and to be used for the purposes therein stated of the committee or trustees therein named, or a majority of them, or their successors, and .the holder hereof assents to, and is bound by, the provisions of said agreement by receiving■ this certificate.' The holder hereof is entitled to receive all the securities, benefits and advantages coming to the depositors, respectively, of said stock under said agreement. The interest represented herein is assignable by transfer upon books kept by this company for that purpose by the holder hereof, in person or by proxy, upon surrender of this certificate, subject to the terms thereof.
    “ Central Trust Company of New York,
    “ By B. J. Mitchell, Ass¿. Secretary.

    New York, 9 Dec., 1890.”
    Ten of these certificates, representing 1,000 shares, were, December 10, 1890, assigned and delivered to Field, Bindley & Co. (a firm of brokers) as security for a loan to plaintiff’s son of $30,-000. On this date the plaintiff also delivered to Field, Bindley & Co. the eighteen certificates for the purpose of having them exchanged for shares in the American Sugar Refining Company, when they were ready to be delivered. Some person forged the name of the plaintiff to an assignment dated January 30,1891, by which the shares represented by the eighteen certificates were assumed to be assigned and transferred to Edward N. Hussey, the execution of which transfer purports to be witnessed by Edward M. Field and Field, Bindley & Co. The signatures “Edward M. Field” and “Field, Bindley & Co.” are in the handwriting of Edward M. Field. The eighteen certificates, with the forged assignment, were delivered to the defendant, and certificates for the number of shares assigned were issued and delivered to Edward N. Hussey. On the 9th of February, 1891, plaintiff received the check of Field, Bindley & Qo. for $5,000, representing five per cent, on the ten- certificates assigned to Field, Bindley & Co., as security for the loan to the plaintiff’s son, and February 12, 1891, the plaintiff received the firm’s check for $9,000, the five per cent, dividend on the eighteen certificates which he had not assigned, as provided by the plan of October 29, 1890. Both checks were paid. On the 10th of February the plaintiff directed Field., Bindley & Co. to sell 1,400 shares of common stock (all the common shares then owned by him) at market rates, which they assumed to do, and February 11th credited the plaintiff with $107,800, which they represented to be the avails arising from the sale of said shares. On April 1, 1891, John F. Wiechers, plaintiff’s son, and the members of the firm of Field, Lindley & Oo., formed a partnership under the name of Field, Lindley, Wiechers & Oo., and continued- the business of the former firm. The plaintiff, to assist his son' to enter the firm, advanced him $50,000 by way of a debit in his account with Field, Lindley & Co. At the time of the formation of the new firm the amount to the plaintiff’s credit with Field, Lindley & Co. was $58,108.36, which sum was credited to them, charged to the new firm, and by that firm credited to the plaintiff, of which he was informed April 1, 1891, by an account rendered. July 2, 1891, the American Sugar Refining.Company paid a dividend of three and one-half per cent, on its preferred shares and of four per cent, on its common shares, and January 2, 1892, it paid like dividends on its preferred and common shares. In November, 1891, Field, Lindley, Wiechers & Co. failed. On the 9th of May, 1892, the plaintiff demanded of the defendant the return of the eighteen certificates and the payment of all dividends paid upon the shares represented by them, which was refused, and this action was brought to recover the value of the shares and the dividends received.

      George A. Strong, for pl’ff; William Allen Butler, for def’t.
   Follett, J.

At the close of the evidence the defendant moved that the complaint be dismissed on various grounds, which was denied, and an exception taken. The defendant then moved that the jury be directed that the plaintiff was not entitled to recover a greater amount than the value of the 900 shares of preferred stock and the dividends of July, 1891, and January, 1892, on those shares, which motion was denied, and the defendant excepted. The plaintiff thereupon asked the court to direct a verdict in his favor for $225,580.72, based upon the following statement:

1,800 shares at 100 ’..........................$180,000 00

Interest (May 27, 1892-Apr. 18, 1894............ 20,460 00

5 per cent, dividend........................... 9,000 00

Interest (May 9, 1892-Apr. 18, 1894............. 1,048 00

Dividend July 1, 1891......................... 6,750 00

Interest (May 9, 1892-Apr. 16, 1894............. 786 36

Dividend Jan. 1, 1892 ......................... 6,750 00

Interest (May 9, 1892-Apr. 16, 1894............. 786 36

$225,580 72

The plaintiff’s motion was denied, and he took an exception. Thereupon the court directed a verdict for the plaintiff for $167,-625, stating that it was arrived at by taking the value of 1,400 shares of preferred stock, as proved, and adding thereto interest from June 3, 1892; also the dividends of July, 1891, and of.January, 1892, with interest from June 3d to the date of the trial. The defendant excepted to the direction. Upon the argument of this motion the defendant insisted that the verdict should be set aside,- and a new trial granted ; and the plaintiff insisted that the verdict be increased from $167,625 to $225,580.72, and that, in case the court held that it was without power to increase the verdict, it be set aside as insufficient, and a¡ new trial granted.

We are unable to see any just foundation for the plaintiff’s position that he is entitled to recover the value of -the 1,400 common shares and the 5 per cent, dividend, amounting to $9,000, paid on the 18 certificates, pursuant to the plan of reorganization. Field, Lindley & Co., assumed to collect this dividend for the plaintiff, and gave him their check therefor, which was paid. Ten days before the plaintiff ordered the firm to sell his 1,400 common shares, they had assumed to sell and transfer the title to them, without authority, but, after receiving the plaintiff’s order of February 10, 1891, to sell, they, on the next day, credited him with $107,800, their then market value. On March 31, 1892, the account was balanced as per this statement:

April 1, 1892} the plaintiff received a copy of the foregoing statement, in which he acquiesced and accepted the new firm of Field, Lindley, Wiechers & Co. as his debtor for $58,103.26, the balance due from the former firm. Whether this credit was paid to the plaintiff of lost by the failure of the firm does not appear. He testified that he authorized Field, Lindléy & Co. to sell the 1,400 common shares, and when he received credit for them he was charged with knowledge that his agents to sell had assumed to be his agents to transfer the shares to the purchaser, for he must have known that an assignment or transfer was necessary. True, he testified that he had never dealt in stocks, but he had then recently transferred 1,000 shares in the usual way to the firm as security for the debt of his son, and so was not wholly ignorant of the mode of transferring the title to shares. The plaintiff having placed the 18 certificates in the possession of the firm with power to exchange them for shares in the new corporation, and having afterwards given the firm power to sell the common shares, and having received the avails of the pretended sale, we think he cannot recover their value of the defendant, though when he gave the order to sell and when he received the credit he was ignorant of the fact that the shares had then been wrongfully disposed of. The plaintiff had no greater claim against this defendant than he has against Field, Lindley & Co., and clearly he could not retain the price of the 1,400 common shares, and also recover from the firm the value of those shares; nor could he retain the $9,000 paid to him as a dividend, and recover from them the amount of that dividend. The court did not err in refusing to direct a verdict for the value of the 1,400 common shares and for the 5 per cent, dividend, amounting to $9,000. As before stated, the court directed a verdict for the value of 1,400 preferred shares and the dividends declared on them in July, 1891, and January, 1892, with interest. Five hundred of the preferred shares had .been assigned and transferred by the plaintiff to Field, Lindley & Co. as collateral security for the loan to his son, which transfer was absolute on its face, was executed by the plaintiff, and the defendant did not violate the plaintiff’s rights in accepting the surrender of the receipt which represented those shares, arid in issuing anew one to Field, Lindley & Co. or to their transferee. Subtracting the 500 preferred shares from 1,400 preferred shares leaves 900 Ereferred shares, which the plaintiff had not authorized Field, indley & Co. to transfer, and the plaintiff’s recovery should have' been limited to the value of those shares and to the dividends declared on them in July, 1891, and in January, 1892, with interest on those dividends. In case the circuit directs a verdict for several distinct items, the amounts of which are not disputed, and the exceptions taken on the trial aré ordered heard by this court in the first instance, it has power, when there is no conflict of evidence* to modify the verdict by rejecting órte or more of the items, and direct the entry of a judgment on the verdict as modified. This court may apply the law to an agreed state of facts, and order an appropriate judgment. Had a judgment been entered on the verdict, and an appeal taken, the power of this court to modify the j udgment by deducting some one or more of the items entering into it would not be doubted, and the court has the same power to modify a verdict on which a judgment has not been entered as it has one which has ripened into a judgment. The judgment should be modified so as to provide that the. plaintiff recover the value of 900 preferred shares and the dividends declared on them in July,. 1891, and in January, 1892, with interest, on those dividends, and a judgment is ordered upon the verdict as modified in favor of the plaintiff, without costs of this motion to either party. All concur.


author: Mayham, P. J.

text:
    William A. Drake, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Evidence—Hearsay.
    Testimony, offered by tlie defendant in an action by an employe for personal injuries, as to wbat another employe said about the matter, is hearsay.
    2. Master and servant—Rules—Fellow.
    A master, who has provided adequate rules for the government of his servants, is not liable for injuries caused by the neglect of his co-servants to observe such rules.
    Appeal from a judgment entered on an order dismissing the complaint.

      M F. Bullard, for app’lt; Harris & Rudd-{Hamilton Harris, of counsel), for resp’t.
   Mayham, P. J.

There was no evidence in this case of negli-' gence on the part of the defendant which would justify the submission of that question to the jury. The only evidence relied upon by the plaintiff to establish the fact that the defendant failed to furnish sufficient and suitable lamps was the testimony of the plaintiff of the declaration of the defendant’s brakeman. That was clearly hearsay, and amounted to no proof of the fact, and cast no burden upon the defendant of proving the contrary, or negativing that unsworn statement. It did not overcome the legal presumption that competent and sufficient servants were employed by the defendant. Potter v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 77; 48 St. Rep. 843. Nor does the testimony of the plaintiff that he saw no light, and heard no torpedoes explode, overcome that presumption.

The company had furnished adequate rules governing the conduct of its employes, and if the coTemployes of the plaintiff failed in the observance of those rules, and the plaintiff was injured for want of such observance, it was the consequence of the negligence of the co-employes for which the defendant is not liable. There .was, therefore, nothing to be submitted to the jury, and the learned trial judge properly dismissed the plaintiff’s complaint.

Judgment affirmed, with costs.

All concur.