text:
    Whitmore Dusenbury et al., Adm’rs, App’lts, v. Aubert D. Hoadley, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Bills and notes—-Evidence.
    In an action on a note alleged to have been made by defendant and delivered to plaintiffs’ intestate, the defense was a general denial. One of the plaintiffs, as a witness in his own behalf, was shown a book and testified that it was the cash-book of deceased, in which he kept, in hisown handwriting, an entry of cash paid out by him, and for money paid by him upon notes bought or discounted. Plaintiffs then offered in evidence the book at a certain page and line, under a certain date, showing cash paid for H. note, the defendant’s, at its face value, and in the handwriting of deceased. It was objected to as incompetent, and the objection sustained. Held, that the book was not competent as an account book, and besides the rule as to account books does not apply to cash transactions such as this.
    Appeal from a judgment entered in Broome county on 17th March, 1892, upon the report of a referee dismissing the complaint.
    The action is upon a note. In the complaint it is alleged that the defendant made and delivered to the plaintiffs’ intestate in his life time a promissory note dated October 20, 1885, for $150, payable one yfear after date “ to the order of Harper Dusenbury or bearer,” for value received with use, and that after the death of George Dusenbury the note came into the possession of plaintiffs as one of the assets of the deceased, and that they are now the lawful owners and holders thereof, and that no part has been paid. The answer was a general denial.
    The referee found that the note was never delivered by the defendant or by his authority, and that as the plaintiffs did not show that their intestate was a purchaser in good faith and for value, they could not recover.

      E. C. Moody, for app’lt; H. S. Williams, for resp’t.
   Merwin, J.

Upon the trial of this action it became important for the plaintiffs to show that their intestate paid value for the note. Whitmore Dusenbury, one of the plaintiffs, being upon the stand as a witness in behalf of the plaintiffs, a book was shown to him and he testified as follows : “ This is the cash book of George Dusenbury in which he kept, in his own handwriting, an entry of cash paid out by him, and for money paid by him upon notes bought or discounted by him.” Plaintiffs then offered in evidence the book page 105, third line from the bottom of the page, under date of October 20, 1885, showing 1 cash paid, A. D. Hoadley note, $150,’ in handwriting of George Dusenbury, deceased.” Tins was objected to as incompetent and immaterial and hearsay, and a memorandum by intestate in his own favor and improper. The objection was sustained and plaintiffs excepted. This ruling the plaintiffs claim to be erroneous.

The case shows that Dusenbury died in 1890, then being an old man and having done no business himself after 1888 ; -that he had been in the mercantile trade for many years and at one time did a banking business as a private banker; made it a business of discounting notes and of loaning money on notes at times. One witness testifies that in 1885 he did not run his store, but looked after his farms and had an office at the store where he transacted all his business. Another witness testifies that Dusenbury formerly kept a store and about this time kept a banking house for about three years; “ was a moneyed man and often discounted notes, bought notes and loaned money, more particularly while in the banking business; after that he did not loan so much, but he did to some particular ones.”

It is to be observed that the entry offered does not show to whom the money was paid, nor is the time of the entry shown except as it may appear from the entry itself. In another part of the evidence the book is called the discount journal of Dusenbury.

The book offered was not competent as an account book. The necessary preliminary facts were not shown, and besides the rule as to account books does not apply to a cash transaction such as was here offered. Smith v. Rentz, 131 N. Y, 169; 42 St. Rep., 879. In the case cited the book offered by the plaintiff and held inadmissible was a ledger kept by plaintiff’s testator, a banker.

There is a rule by which entries of third persons in the usual course of business are, after the death of the persons making the entries, competent evidence. Arms v. Middleton, 23 Barb., 573 ; Fisher v. Mayor, 67 N. Y, 77 ; Burke v. Wolfe, 6 J. & S., 271; 1 Greenl. Ev., § 115. As said by Judge Story in Nicholls v. Webb, 8 Wheat., 337, “ memoranda made by a person in the ordinary course of his business of acts or matters which his duty in such business requires him to do for others, are, in case of his death, admissible evidence of the acts and matters so done.” So, entries of deceased persons against their interest are admissible. See Wood’s Practice Ev., § 119 et seq. But these principles do not help the plaintiffs here, and we are referred to no case which holds that the entries made by the party himself in his books in his own favor are admissible in favor of his estate in a case like the present On the contrary, it has been substantially held in a number of cases that such entries are not admissible. Vaughn v. Strong, 4 N. Y. Supp., 686; S. C., 22 St. Rep., 369; Mason v. Wedderspoon, 43 Hun, 21. See, also, Doolittle v. Stone, 8 N. Y. Supp., 605 ; 28 St. Rep., 319 ; Sheldon v. Sheldon, 11 N. Y. Supp., 477 ; 33 St. Rep., 754, reversed upon other grounds in 133 N. Y., 1; 44 St. Rep., 260; Schwartz v. Allen, 24 St. Rep., 912; 11 Heisk. (Tenn.), 557, cited in Wood Pr. Ev., § 124. We think that the referee did not err in his ruling.

There are no other questions that call for special consideration. The question of delivery was at issue under the general denial. Sawyer v. Warner, 15 Barb., 282. There was evidence from which the referee had a right to find that the note was never delivered by the defendant, and that being so, it was incumbent upon the plaintiffs in order to complete their title to show that their intestate purchased in good faith and for value. Hall v. Wilson, 16 Barb., 548; Curtis v. Crane, 6 St. Rep., 748; aff’d 121 N. Y., 650; 30 St. Rep., 1011.

We find no sufficient ground for reversal.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Jenette Nelson, Resp’t, v. Roswell E. Brown, Impleaded, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Will—Provision ra lieu op doweb.
    One N. died leaving a will, the second clause of which read, “ I here1 y devise and bequeath unto my wife J. the use, income and profits of all my

      real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have as doweress if this devise was not made to her.” Held, that there was no intention to abrogate the force of the express provision; that the subsequent words at most were intended only as descriptive of what had already been given, and, therefore, that J., having accepted the provision and devise made for her by will, could not recover dower in certain of the property sold at foreclosure sale.
    Appeal from a judgment entered in Herkimer county on April 4, 1892, with notice of intention to bring up for review the interlocutory judgment, entered in' said county on 12th October, 1891, upon the decision of the court at Herkimer special term September, 1891.
    The action is brought by the plaintiff as the widow of John Nelson to recover dower in 273 acres of laud in Herkimer county of which John Nelson died seized. The defgnse is that Nelson left a will in which he made a provision for his wife in lieu of dower, which she has accepted. It was decided at special term that the plaintiff was entitled to recover, and commissioners for admeasurement were appointed. Upon their report final judgment was entered.

      S. W. Petrie, for app’lt; C. J. Palmer, for resp’t.
   Merwin, J.

John Nelson died on the 22d March, 1889, leaving a will which is dated December 16, 1875, and three codicils thereto attached, which are dated February 1, 1881, May 28, 1881, October 31, 1881. The will and codicils were duly proved on July 1, 1889. By the first clause of the will, the testator appointed his wife and his son George his executors, and directed them to pay all his debts. The second clause was as follows : “ I hereby devise and bequeath unto my beloved wife, Jenette Nelson, the use, income, profits, rents and profits of all my real estate during her natural life, to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have as doweress if this devise was not so made to her.”

By the third clause his son George was given the fee of a farm of 326 acres “ to be taken, held and received by him after the death of his mother, and the termination of her life estate therein as before given and devised.” By the fourth clause the testator devised a farm of about 275 acres, called the Churchill farm, to a trustee in trust for his son Walter and his children, the trustee to have possession at the death of the testator’s wife. He then gave pecuniary legacies to the amount of $10,000 to be paid from the personal property, if sufficient, and any deficiency to be a charge upon the lands given in fee to George Nelson, and if the personal was more than enough to pay the debts and legacies, the balance the testator gave to his wife. By the last clause he gave to his wife a life estate in the house and lot owned by him in Little Falls, and at her death devised the same to his grandchildren. By the first codicil, he devised to his son George the half of the Devendorf farm, he had that day purchased, charging it with the payment of certain sums for the benefit of his grandchildren. The second codicil related to the stock on the Churchill farm. By the third codicil he made provision for the payment from his personal property of the balance of the purchase money of the half of the Devendorf farm.

On the 5th January, 1884, John Nelson executed and delivered to Jacob A. Churchill a mortgage on the Churchill farm in the sum of $10,000 payable within five years. The plaintiff did not sign this mortgage. It was recorded on January 11, 1884, and on the 23d February-, 1889, was duly assigned to Letitia Howard, who in March, 1890, commenced in the supreme court an action for its foreclosure. The parties defendant in that action were Churchill, who had guaranteed the mortgage, the present plaintiff and the trustee and those interested in the trust under the will of John Nelson.

In the complaint no reference was made to the rights of Mrs. Nelson except the general allegation that the defendants other than Churchill “ have, or claim to have, some interest in or lien upon the said mortgaged, premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage.” Judgment was demanded in the usual form in foreclosure. Mrs. Nelson was served with the summons and complaint, but did not appear or answer. The other defendants except Churchill appeared and answered, denying the execution of the mortgage, and alleging that John Nelson was at the time of unsound mind, and that there was no consideration for the mortgage. The issues so joined were brought to trial at special term December, 1890, and were decided in favor of the plaintiff therein, and the usual judgment of foreclosure was ordered. One of the findings of fact in the decision was “ that under and by virtue of the last will and testament of said John Nelson, deceased, the defendant, Jenette Nelson, is entitled to a life estate in the mortgaged premises, in addition to her dower therein as widow of said John Nelson, deceased.” One of the conclusions of law was that “ the plaintiff is entitled to the usual decree of foreclosure and sale against all the defendants, subject to the dower of the defendant Jenette Nelson.” The judgment that was entered provided that the premises be sold subject to the dower therein of the defendant Jenette Nelson.” Upon this judgment a sale was made on the 7th March, 1891, by the referee named therein, and the premises were bid off by Letitia Howard for $10,350. In his report of sale the referee states that be sold the mortgaged premises, but nothing is stated as to whether or not he sold subject to the dower of Mrs. Nelson, nor is there anything stated on that subject in the deed given by the referee to the purchaser. In terms the deed conveys “ all the right, title and interest of John Nelson as the same vested in him on the 11th day of January, 1884.” The report of sale was duly confirmed on 14th March, 1891. On the 20th April, 1891, Letitia Howard by quit claim deed conveyed the premises and all her right, title and interest therein to the appellant Roswell E. Brown. In this deed no reference is made to the foreclosure deed or to the dower right of Mrs. Nelson.

Nelson at his death was the owner of the real estate referred to in the will and the first codicil, and there was no incumbrance on any of the lands except the mortgage above referred to. At his death the plaintiff took possession of all the property left her by the will, and has since then had the use of all the real estate except that upon the 20th April, 1891, the defendant Brown took possession of the Churchill farm under the deed to him from Letitia Howard. The present action to recover dower in that farm was commenced on 22d June, 1891.

The questions upon this appeal are (1) whether the defendant, Brown, is estopped by the provision in the foreclosure judgment from denying the right of the plaintiff to recover dower, and if not, then (2) whether the provision in the will is in lieu of dower.

1. In the foreclosure action the widow did not appear. There-was no issue upon the subject of her dower. A judgment against her in such a case would not bar her paramount right if she had one. Ocumpaugh v. Wing, 12 Week. Dig., 566 ; Lewis v. Smith, 5 Seld., 502; Merchants' Bank v. Thomson, 55 N. Y., 7; Payn v. Grant, 23 Hun, 134. In the Merchants’ Bank case it is said r A person claiming dower by title paramount to the mortgage cannot be brought into court in such a suit to contest the validity of dower. The position is the same as if she had not been made a party to the foreclosure action.”

If the judgment, had it been against the plaintiff, would not have barred her right, she cannot claim it to be a bar in her favor. The operation of estoppels must be mutual. Freeman on Judgments, § 159; 1 Gr. Ev., § 524; Brower v. Bowers, 1 Abb. Ct. App. Dec., 219; Van Camp v. Fowler, 41 St. Rep., 80,83, affirmed 133 N. Y, 600 ; 44 St. Rep., 930.

How the finding on the subject came to be made in the foreclosure action does not appear. Aside from the provision in the findings and judgment, there is nothing in the case that estops the appellant from denying plaintiff’s claim. The will is set out by plaintiff in her complaint. The foreclosure proceedings are also-therein referred to as indicating the position of the defendant, Brown, but there is no allegation or claim of any estoppel. As the case stands, we think that, none is shown to exist available to the plaintiff in this action.

2. Did the testator intend to give his wife the use for life of all his real estate in lieu of dower, or in addition to dower? This is to be determined from the- will itself and such surrounding circumstances as may be properly taken into account. He was apparently then the owner of two farms and a house and lot. He was 70 years old, and was married to plaintiff in 1829. By the clause in question, there isa very definite devise in lieu of dower, but the expression is added, “ and in addition to what interest she would have as doweress if this devise was not so made to her.” Does this destroy the effect of the absolute expression just preceding ? The last expression carries the idea that as the devise is made in the form it is, the widow gets nothing as doweress, but that she will in fact get a greater interest than her dower would be. In this view the latter expression may be deemed a statement of the nature or extent of the gift, and in that way a meaning be given to it not inconsistent with the words, “ in lieu of dower.”

The contention of the plaintiff would require us to disregard entirely the expression “ to be enjoyed, accepted and received by her in lieu of dower.” This should not be done unless the intent of the testator very clearly appears to that effect. An express and positive devise cannot be controlled by subsequent ambiguous words. 2 Wms. Exrs., 6 Am. ed.,_1168, note m.,rule'12. A devise of a life estate in the whole in addition to dower is unusual in its character, and there is nothing in the present case to indicate that the testator had-any reason to make a devise in that form, or that would make such a devise probable.

In the cases apparently relied on by the plaintiff, there were no express words stating the devise to be in lieu of dower.

In this case it seems to me that it cannot be said that there is any intention to abrogate the force of the express provision, and that the subsequent words at most were intended only as descriptive of what had already been given.

It follows that the plaintiff cannot recover dower, as it is conceded that she accepted the provision and devise made for her by the will.

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

Martin, J., concurs; Hardin, P. J., not acting.


text:
    John McGoldrick, Ad’mr, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Railroad—Negligence—Charge.
    Defendant, a railroad company, constructed a plank hopper and sewer to carry off water which dripped from its water column and spout, the end of which when turned off was about four feet from the sidewalk; but said sewer had become clogged, and the water passed onto the sidewalk and made it icy. Plaintiff’s intestate fell on this sidewalk, and drove a tanner’s knife, which he carried wrapped up in some clothes, into his side, causing his death. Held, that a charge that the defendant could not be held liable except upon the theory that, its failure to provide a place for the water which was allowed to escape from its pipe made the walk more dangerous than it otherwise would have been, was sufficiently favorable to defendant.
    2. Same.
    Intestate’s widow testified that she wrapped the knife, which her husband carried, in a newspaper, and then wrapped his working clothes around it, then did it up in another bundle, and put a cotton and wool cloth garment around this, and knotted 'it tight, this being the manner in which he had carried the knife for years, and never had any accident. Held, that if the jury believed, as they had a right to do. that the knife was wrapped up as testified to, and that the deceased was accustomed to carry it that way without injury, it should not be said, as a matter of law, that deceased was negligent.
    Appeal from a judgment entered in Oneida county, February 4, 1892, upon a verdict rendered at the Oneida circuit, January, 1892, in favor of the plaintiff for $2,500; also, from an order denying a motion on the minutes for a new trial.

      The action is to recover damages for the death of John Mc-Groldrick, which occurred at the city of Eome, on the 10th of February, 1890. In one count of the complaint it is alleged that the death was caused by the wrongful and illegal act of the defendant in permitting water to flow from its water pipes or tank on to the sidewalk on James street, fronting the premises of defendant, and allowing such water to accumulate and freeze, so that the sidewalk became icy and dangerous and an obstruction to the public, by reason of which the deceased slipped and fell, and was fatally injured. The second count is substantially the same, except that negligence is charged.

      C. D. Prescott, for app’lt; McMahon & Curtin, for resp’t.
   Merwin, J.

On the 10th February, 1890, John McGfoldricky the plaintiff’s intestate, fell at or near the station of defendant, at Eome, and received an injury from which death ensued. At that station, and near the sidewalk that passes on the west side of James street from the southerly track of defendant to a branch track leading to the track of the Hew York, Ontario & Western Eailroad, the defendant maintained a water column and spout, from which its engines obtained water. The end of this spout, when turned off, was about four feet from the sidewalk, and water was accustomed to drip or flow therefrom upon occasions when it was used and turned off. Directly under the end of the spout where it was turned off, and for the purpose of taking off the overflow, the defendant some years ago put in a plank hopper, and a plank sewer extended from there southerly across the Ontario & Western Eailroad to the end of the sewer on James street Over the top of the hopper there was placed a wire screen. There is evidence tending to show that the opening of this outlet or hopper was, prior to the accident, clogged up by ice or snow so that the surplus water did not pass off by the sewer, but did pass on to the sidewalk, and made it dangerously icy. The claim of the plaintiff is that his intestate slipped and fell on this sidewalk at the point where the ice had so accumulated. There is evidence tending to show that to have been the case. There is no claim that the defendant had any license from the city to obstruct the sidewalk.

The intestate was by trade a tanner and upon the day in question was upon his way to the place where he worked. He had with him in his hand or upon his arm a tanner’s knife, called a beam knife, that was used by him in his business. This was a large sharp knife, and the manner in which "it was wrapped up upon this occasion is described as follows by his wife: I wrapped this knife of my husband’s up in a newspaper; next wrapped it up tight in his working shirt; next wrapped his overalls around it and his working vest, and then wound a string all around it from the handle to the point as tight as I could, and then done it up in another bundle and knotted it tight I put another cloth over this that I knotted. The other cloth was cotton and wool; thick stuff. It was a garment that he took around it always on purpose.”

There was evidence that he was accustomed to carry it in this way. As he fell, he received a cut from the point of this knife that produced an hemorrhage that was the immediate cause of his death.

Whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact The defendant claims that there is no basis for a recovery because the obstruction was upon a sidewalk, and the city therefore only liable. It has, however, been held that an owner of adjacent premises who without authority interferes with a sidewalk for his private purposes and fails to restore it to a safe condition is liable to any one sustaining injury thereby. Smith v. Ryan, 29, St. Rep., 672; aff'd in 130 N. Y, 653; 41 St. Rep., 950. See, also, Mairs v. Manhattan Real Est. Ass'n, 89 N. Y., 503, and cases cited.

In the present case the court charged that the defendant could not be held liable except upon the theory that its failure to provide a place for the water which was allowed to escape from the pipe made the walk more dangerous than it otherwise would have been. This was sufficiently favorable to the defendant.

Upon the question of contributory negligence, the defendant claims that as matter of law the intestate was negligent in carrying his knife in the way he did. A witness on behalf of the defendant testifies that some time before the accident he told the deceased that, in carrying these tools, “ they ought to have a board on them or a shingle tied on to keep them from mishap, because if it were just merely wrapped in paper or cloth the knife is so sharp that it would slide through and do some damage,” and the deceased replied that he had used them for a great number of years, and. never had any accident. If the jury believed, as they had a right to, that the knife was wrapped up as testified to by the wife and that the deceased was accustomed to carry it that way without injury, it should not be said as matter of law that the deceased was negligent. Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 364; 22 St. Rep., 697; Palmer v. Dearing, 93 N. Y., 7.

The defendant claims .that the deceased was intoxicated, but that was a disputed question and was for the jury. The fact that. the consequences of the fall were unusual is no defense if in other respects a liability existed. Wharton on Negligence, § 16 et seq. Ehrgott v. Mayor, etc., 96 N. Y., 281. See also 1 Shearman & Redfield on Negligence, 4th ed., § 36; Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y., 657; 38 St. Rep., 675.

No sufficient reason for reversal appears.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Hatch, J.

text:
    Oliver E. Williams, App’lt, v. The New York, Lake Erie & Western Railroad Company, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    1. Master and servant—Negligence.
    Plaintiff, while in the employ of the defendant, a railroad company, was directed to jack up an unfinished platform car, and in so doing was injured, and brought suit to recover for such injuries. Upon the trial tile evidence tended to establish that the jack used was not a sound tool and safe for the purpose required, that with a perfect jack the accident wou.d not have happened. It also appeared that many of the jacks in use about the shop were worn and wobbled. A witness testified that he had informed defendant’s foreman, before plaintiff was injured, that the jacks were not fit' for use. Held, that the trial court erred in granting a nonsuit; that it was for the jury to determine whether or not the accident was caused by a defect in the jack, and if so, whether the plaintiff was guilty of contributory negligence.
    3. Same—Contributory.
    It appeared that the wooden horses used for support could not be placed under the body until the trucks were removed, and the car fell before they were taken out. Held, that the act of g ring under the car, simply to raise the pin, was not so apparently dangerous as to be characterized as negligence per se.

    Appeal from a judgment and order denying plaintiff’s motion to set aside a nonsuit.

      George W Cothran, for app’lt; Sprague, Morey, Sprague & Brownell, for resp’t.
   Hatch, J.

Upon the evidence given, I am persuaded that plaintiff was entitled to have his case submitted to the jury. It appeared that he was employed by defendant as a car repairer, working in and about defendant’s repair shop and yards in this city. He entered such employment on October 1, 1888, and continued therein until the 18th of the same month, when he received the injuries for which this suit is brought. On the last named, day he and one Zimmer were directed, by the foreman, to jacks up a new unfinished platform car and remove therefrom the center plates that connected the body of the car with the trucks. Plaintiff had never before jacked up a car, but had seen jacks and knew their use. There were a number of jacks about the repair shop, furnished by defendant, some of which were single screw jacks, and some with double screws worked with a lever.

Upon the direction being given plaintiff found a single screw jack, which he placed under the north side of the car, while Zimmer procured a double screw jack, which he placed under the south side of the car. Plaintiff did not see, and had never examined the jack procured by Zimmer, nor had he before that time any occasion to examine or use them. When the jacks were placed in position the car was raised from four to six inches above the trucks, but not sufficiently far to have the center pin, which entered a socket about twelve inches, clear the plates; this could be accomplished by raising the body still higher with the jacks or by going under the car and raising the pin by hand; the latter course was adopted. Zimmer was to draw out the trucks of the car while plaintiff raised the pin. Before the latter went under the car he looked at his jack, found it was secure, then looked at Zimmer’s jack, which appeared secure, and then went under the car. As he raised the pin he felt a sudden jar, the body of the car swayed to the south, plaintiff tried to escape, but was caught betweemthe pin and the side of the car-wheel, where he was pinioned by the neck, receiving serious and permanent injuries, for which he now seeks compensation.

The allegations of negligence upon the part of defendant consist in not furnishing a safe and secure jack for the use designed. It is needless to cite authority in support of the doctrine that a master is bound to furnish safe, suitable and sound tools for the performance of his work, and to keep them in repair, in and about which duty he is required to exercise reasonable care and prudence. Applying this rule to the facts, we find that the evidence tends to establish that the jack which was procured by Zimmer was not a sound tool and safe for the purpose required. Upon this point the testimony of the witness was to the effect that one of the screws of the jack used by Zimmer had fallen into the cylinder, and laid upon the ground by the side of the car, immediately following the accident; that a perfect screw could not fall into the cylinder without the application of power, either by the lever, if a weight rested upon it, or by the hand turning it, if there were no weight.

It also appeared that many of the jacks, in use about the shop, had become worn and wobbled in their sockets; that this indicated a wearing of the screw and a consequent loss of power. Independent of the oral proof the jury were also entitled to consider, as bearing upon the cause of the accident, the action of the car, the fact that when it fell it swerved towards the south, that 1 the giving way was where the claimed defective jack was placed. All of this testimony, and the circumstances of the accident, would warrant the jury in drawing the inference that the falling of the car was due to a defect in the jack. It is insisted, however, if this be true, that there is no evidence to show that the master was informed of the condition of the tool, or had been guilty of any lack of care in providing a safe implement. This contention is not borne out by the fact, for the witness Wolfe, who worked at- the same place for defendant, both before and after plaintiff was injured, testified that he informed the foreman of defendant that the jacks would not work properly, and were not fit for use. Notice of this character was notice to defendant; at least, it was evidence from which the jury would have been authorized to find that notice had been given. Mann v. Del. & Hudson Canal Co., 91 N. Y., 501; Harvey v. N. Y. Central R. R. Co., 19 Hun, 556.

It is further insisted that the plaintiff had the same means of knowledge of the defect, or of informing himself of it, as the defendant had. This, however, is not borne out by the testimony, for it affirmatively appeared that plaintiff had only been at work thirteen days, and daring that time had not had occasion to use a jack, and in fact had not before used one; besides, from a description of the jack, it is apparent that if the nut was worn it could not be detected by a casual inspection, and might not by anyone not accustomed to their use, even though examination be had, as a portion was hidden from view. Objection is also urged that if there be any negligence it was that of a co-employe, of which plaintiff took the risk. If we assume that Zimmer was negligent in making use of a defective jack, the defendant is not aided. As we have seen, Zimmer selected the jack alone without aid or consultation with plaintiff, consequently, if he ought to have or did discover its defect, nevertheless it was alone his negligence, and such fact in no wise detracted from the duty of defendant; it was still negligent in furnishing the unsound tool, so that it becomes the concurrent negligence of both. Under such circumstances the master is not excused. Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y., 557 ; 34 St. Rep., 214.

Defendant urges that the evidence conclusively establishes contributory negligence upon the part of plaintiff. This was clearly not the opinion of the learned trial court, as it announced that the evidence upon that branch of the case was sufficient to submit to the jury. I see no reason for disagreeing with that conclusion. The main features upon which this claim is urged have been already noticed; the only additional one relates to his going under the car, when it might have been raised sufficiently high by the jacks to obviate the necessity, and also by a failure to use other supports for the body of the car than the jacks. It appears that the wooden horses used for support could not be placed under the body until the trucks were removed, and the car fell before they were taken out. Taking all the circumstances into consideration, I am not alble to say, as matter of law, that the act of going under the car, simply to raise the pin, was so apparently dangerous as to be characterized as negligence per se; it is doubtless competent for the jury so to find, but it is a question for them.

Error was also committed in rejecting offered testimony and ivl striking out that which had been given, but as this will doubtless be avoided upon a new trial, it is not deemed necessary to discuss it.

I am, therefore, of opinion that the judgment and order appealed from should be reversed, the non-suit set aside, and a new trial ordered, with costs to abide the event

White, J., concurs; Titus, Ch. J., not sitting.


text:
    Henry C. Tucker, Resp’t, v. George Werner, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Lien—Chattel mortgage—Repairs to mortgaged chattel.
    A chattel mortgage upon a buggy provided that the same was not to be removed from a certain barn without the written consent of the mortgagee; but it was agreed that M., the mortgagor, should have the possession and use of the buggy. M. left the buggy with W". for necessary repairs, and after the work was done W. demanded his pay of the mortgagor, which was refused, and W. refused to deliver the buggy unless paid the amount due for his work and storage since his demand. The mortgagee thereafter brought replevin to recover the buggy. Held, that the lien of the mechanic for services was superior to that of the mortgagee, but not the lien for storage.
    Appeal from a judgment rendered by the municipal court of Buffalo.

      Charles P. Norton, for resp’t; Tracy C. Becker, for app’lt.
   Hatch, J.

action is replevin, and the facts are agreed upon. Plaintiff held a chattel mortgage upon a buggy and other property previously owned by one Morgenstern, executed by liim as collateral security for the payment, thirty days after date, of a certain promissory note, indorsed by plaintiff for Morgenstern, and held by the Bank of Buffalo, and as continuing security for any renewals of the same, or for other indorsements of Morgenstern’s paper, in an amount not to exceed in all the sum of $284.

The mortgage was duly filed, and subsequently renewed, as lequired by law. The possession and use of the buggy, subject to the conditions of seizure and sale contained in 'the mortgage, remained in Morgenstern; and while so in use, he took the buggy to the factory of defendant and requested him to make certain repairs thereon, which defendant did, amounting in value to $25.35. When the same were completed, pay was demanded of Morgenstern, which was refused, and defendant retained possession of the buggy, and now claims a lien thereon for the value of the repairs and storage since the demand for pay, the latter item being reasonably worth one dollar per week. Plaintiff had no knowledge of the delivery of the buggy to defendant, of the repairs made thereon, or of the fact of storage, or its charge, until -he made a demand upon defendant for the surrender of the property to him by virtue of his mortgage, when the lien for both items was asserted, and delivery of the property was refused untila payment made.

Upon these facts the court below rendered judgment in favor of the defendant and awarded the possession of the property to him. I do not understand, from the case agreed upon, or from the argument of counsel, it is denied that at common law a lien existed in favor of the mechanic for repairs made of value to the property; contention against it would be futile. Morgan v. Congdon, 4 N. Y., 553; Wiles Laundering Co. v. Hahlo, 105 id., 240 ; 7 St. Rep., 1.

It is, however, earnestly insisted that such lien is subordinate to the lien of a chattel mortgage duly filed, and as applied to the circumstances of this case is inferior to plaintiff’s lien. This presents the question to be decided. While the mortgage provides that the mortgaged property is in a certain barn, and that the same is not to be removed therefrom without the written consent of plaintiff, yet, it appearing in the agreed statement of facts that Morgenstern was to have the possession and use of the buggy, the case must be disposed of upon the theory that such use was with plaintiff’s knowledge and consent; he thus clothed Morgenstern with authority and dominion over the property, coupled with an apparent ownership.

It may also be assumed, from the nature of the repairs, as shown by the bill, and the character of the property, in constant use, that such repairs were necessary, useful for its preservation, and enhanced its value. If we are right in these inferences, we have a case where the mortgagee authorized a use of the property, clothed the mortgagor with apparent ownership, and where the work done has added value to the property. This, as I view the case, brings it within the principle of the decision in Scott v. Delahunt, 65 N. Y., 128.

It is there laid down as a rule that all mechanics have a lien for labor bestowed, so long as they retain possession of the article; and if the mortgagor continue in the apparent ownership, prosecuting his business, which necessitates the use of the article, and where such use was contemplated, that such relation raises the implication that the mortgagor may take all necessary steps to preserve the property and render it fit for use, that under the circumstances necessary repairs are superior to the lien of the mortgage, as the mortgagee has authorized them. It is true that in that case the mortgagee knew of the repairs being made, and made no objection thereto, and that the mortgage was then due, but in the discussion of the case no mention is made of those facts as controlling the decision, but therein it is placed upon the ground that possession, use and apparent ownership were in the mortgagor, and he was prosecuting a business with it, and these facts were what raised the implication of right to preserve the property for purposes of use, as it was for the benefit of all concerned.

I can find nothing in the case of Payne v. Batterson, partially reported in 22 W. Dig., 109, and of which we have been furnished with a manuscript opinion in full, which conflicts with this view. In that case there was a conditional sale of the property, the title remained in the vendor, he in nowise authorized the repairs, and there were no circumstances from which consent to their performance could be implied.

Likewise the case of Broman v. Young, 35 Hun, 173, is distinguishable. In that case the work was performed under contract with the mortgagor, the mortgagees having nothing to do about it; true, they knew of the repairs, but they were powerless to prevent them, or consent to them, as the property was not under their control, and at the time they had no right of seizure, and could not by any act of theirs take possession. In the present case, by the express provision of the mortgage, plaintiff was authorized to seize and take possession of the property at any time he chose, a very significant distinction.

The case of White v. Smith, 44 N. J. L., 109, also supports the doctrine here contended for. In that case the wife was owner of a wagon which she had delivered to her husband, who used it, and was clothed with apparent ownership; he delivered it to a mechanic, who repaired it upon the supposition that it belonged to the husband. The lien was supported against an action brought by the wife, upon the ground that the property was enhanced in value, and authority was implied upon the part of the husband to contract for the repairs by reason of his relation to the property, although the wife had no knowledge of the service rendered.

Quite similar to the present case is that of Hammond v. Danielson, 126 Mass., 294.

There repairs were made upon a hack, upon which was a chattel mortgage not yet due; it was held that the mechanic had a lien for his repairs superior to that of the mortgagee, although the mortgagee was not informed, and had no knowledge of their performance. This decision went upon the ground that the mortgage contemplated the possession and use of the property in the prosecution of the mortgagor’s business, and as the repairs were necessary to preserve the property, and continue it fit for use, authority from the mortgagee to contract for the repairs was to be implied in the mortgagor, and the lien was then enforced. As has been already observed in this case, authority for the use of the vehicle by the mortgagor in the prosecution of his business, is one of the facts agreed, so that there is no difference in principle between the cases.

It is claimed that this decision is not sound and has in fact been overruled. Its unsoundness is claimed to exist in the fact that it applies to the case the doctrine of maritime liens, but the basis upon which maritime liens are upheld grows out of the fact that they are essential to the preservation of the vessel, that it may be used in the prosecution of its voyage', thus earning money with which to pay the mortgage debt, and also the difficulty of procuring needed repairs in a foreign port, unless the vessel were the pledge of payment, relieved from other burdens. But what difference in principle can there be where a carriage is used for the purpose of earning money to pay a debt and the repairs are essential for the preservation and the continuance of earning power ? The article may be the very thing which earns the money, like the hack, or it may be a vehicle by which the individual is enabled to carry on an industry from which he earns what he is obligated to pay. In either event is always found some one of the principles upon which the lien rests, and sometimes they are combined, as where the repairs have added value to the property and thereby enhanced the security, or the repairs have preserved the property to enable it to pay .the security.

I can see no sound distinction in principle between the case cited and the authorities with which the learned judge supported his conclusion, although they may not at all times be applicable to a case where a lien may be upheld upon some one of the principles noted, or where the lien fails because the principle of maritime liens is inapplicable; it is sufficient to say that the case criticised is not one of either class. The authorities claimed to overrule Hammond v. Danielson, supra, have been examined. The case is mentioned in Storms v. Smith, 137 Mass., 203, where it is said: “ The description, of the mortgaged hack, as now in use at the American Stables, was deemed sufficient to express the intent that the hack should be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the moi'tgagor.”

I am unable to see anything in this indicating a disposition to depart from the doctrine announced in the prior case, or in the reasoning of the other, cases cited both in Massachusetts and in other states, which destroys its force and efficacy as an authority.

There is no doubt of the correctness of counsel for the plaintiff as to the rights obtained by a chattel mortgage duly filed, but these authorities find no application here, for t.he reason that, under the facts of this case, plaintiff must be assumed to have impliedly authorized the repairs, and having authorized them, he is not now to be heard as asserting a superior lien by virtue of his mortgage.

I am, however, of opinion, upon the authority of Storms v. Smith, 137 Mass., 203, that defendant is not entitled to assert a superior lien over the mortgage for storage, and for the further reason that no implication can arise that plaintiff consented to such stórage or was bound to take notice of such charge, in addition that defendant was not obliged to store the buggy, for he could at any time have secured his pay by a foreclosure of his lien. If these views are correct the judgment must be affirmed.

Titus, Ch. J., and White, J., concur.


text:
    Thomas Eckert, App’lt, v. Michael Lennert, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Parties—Money paid by mistake.
    Plaintiff and one B. jointly engaged to purchase of defendant certain premises. By the contract a mortgage was assumed, upon which was some accrued interest. When the contract was consummated plaintiff, who furnished the money, by mistake paid the interest item to defendant, who refused to return the same, and plaintiff was obliged to pay the mortgagee the amou.it. After the purchase B. transferred all his interest to plaintiff, who thereafter brought action to recover the money overpaid from defendant, and was nonsuited upon the ground that there was a defect of parties Held, error; that plaintiff alone was entitled to the money to be recovered, and, therefore, the only party in interest.
    Appeal from a judgment, entered in the municipal court of Buffalo, dismissing plaintiff’s complaint.

      W. G. Kilhoffer, for app’lt; M. A. Gerons, for resp’t
   Hatch, J.

Plaintiff and one Enders jointly engaged to purchase of defendant certain premises; by contract a mortgage was assumed, upon which, at the time, was some accrued interest. When the parties met to consummate the contract and pay the purchase money, plaintiff, who furnished the money, by mistake, paid the interest item to defendant, who has ever since kept it, and thereafter plaintiff' was obliged to pay the mortgagee the amount of said item. After the purchase was made, Enders transferred all his right and interest in the property to plaintiff. Thereafter plaintiff demanded the money overpaid from defendant, and upon refusal brought this action, and was nonsuited below, upon the ground that there was a defect of parties.

I am unable to see how this result can be legally reached. If we assume that the money produced by plaintiff was partnership money, yet it was only so to the amount agreed upon as the purchase price, so that when he made a mistake and overpaid, it was his money and his mistake, and he alone had an interest in its recovery back, and when recovered it belonged entirely to him. The matter was independent of the real estate transaction ; that embraced the land and its purchase price was a joint charge upon the plaintiff and Enders, but it was limited to that, and when plaintiff made his mistake and paid more money than he should, he was the only one that suffered, and the law should right him. It is immaterial to the question whether Enders was liable for a proportion of the money so paid to plaintiff, as that matter would necessarily turn upon other questions than the purchase of the land, like whether he was responsible for the mistake, and so forth; but that question would be entirely independent of the joint venture, except as the circumstance furnished the occasion for the mistake. Since the mistake wras made Enders has parted with all interest in the land to plaintiff, and now plaintiff seeks to make defendant repay him his money, and is driven out of court because he has not associated with him a person who has not the slightest interest in the money. The Code, § 449, commands that every action shall be brought in the name of the real party in interest. As the plaintiff is entitled, and he alone, to the money to be recovered, and as it was his money when paid, he would seem to fall within the designation of a party in interest.

The action was, therefore, properly brought and the judgment dismissing the complaint should be reversed, with costs.

Titus, Ch. J., and White, J., concur.


author: Titus, Ch. J. White, J.

text:
    The People ex rel. Amelia E. Reynolds, Resp’t, v. The Common Council of the City of Buffalo, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Statutes—Repeal op remedial statute—Mandamus.
    Chapter 393. Laws of 1890, authorized the city of Buffalo to audit and adjust the amount of damages occasioned to the property of relator by taking adjoining property for a street and tearing down the half of a double house on such property, the remaining part being on relator’s land. The commissioners appointed, as provided by the act, to appraise the damage, made their report, awarding $5,500, which was confirmed, but before the common council had audited the claim the legislature repealed the act. Thereafter a peremptory writ of mandamus was granted commanding the common council to , audit the amount at $5,500 and raise the same by assessment, and from such order the common council appealed. Held, that relator’s right was clear and the remedy by mandamus was proper to enforce it.
    (White, J., dissents.)
    Appeal from order at trial term granting writ of peremptory mandamus directing defendant to audit claim of Amelia E. Reynolds for damages.

      George M. Browne, for appl't; Daniel McIntosh and O. O. Cottle, for resp’t.
   Titus, Ch. J.

This proceeding is instituted under chapter 393 of the Laws of 1890, authorizing the city of Buffalo to audit and adjust the amount of damage which has been occasioned to the property of Amelia E. Reynolds.

In 1885 certain proceedings were instituted by the city of Buffalo to take lands necessary to extend Elmwood avenue from Butler street to Norton street. The land of the respondent adjoined property through which the street passed.

On this land was a large double house, a part of which was on the property taken, and the other part on the land of the respondent. Mo portion of the property of the respondent was taken in opening Elmwood avenue, but in removing the portion of the building on the land taken by the city for the improvement, great damage was done to the portion of the house on the respondent’s land. The commissioners in that proceeding did not award the respondent damages, because none of her property was taken, and no authority was found to authorize an award to her.

The legislature then passed an act (chapter 393 of the Laws of 1890), under which the present proceeding was taken. Commissioners were appointed by the court as provided by the act, to-appraise the damage to respondent’s property. They made their report and awarded her $5,500. The report was confirmed by the court on the 10th day of February, 1891. On the 3d day of March, 1891, and before the common council had audited and adjusted her claim, the legislature repealed the act of May, 1890. Chapter 42 of the Laws of 1891.

An application for a peremptory writ of mandamus was made' at a special term of this court, which was granted, commanding the common council to audit and adjust the amount of damages-occasioned to the property of the respondent at $5,500, the sum fixed by the commissioners in their report, and to raise the same by assessment upon the property benefited by the opening of Elm-wood avenue. An appeal by the common council from that order brings before us the questions we are to consider.

Before the passage of the act of 1890, Mrs. Reynolds had entered into an agreement with the city of Buffalo, in consideration of the sale to her of the building upon the property taken in opening the street, to release the city from all damages which her' property had sustained by reason of the opening of the street and the tearing down of one-half of the building.

An appeal was taken to this court from an order denying a stay of the proceedings of the commissioners appointed to award damages to the respondent, and man}' of the questions here raised were passed upon adversely to the city on that appeal, among them the regularity of the proceedings and the validity of the statute under which they were instituted, chapter 393 of the Laws-of 1890, and the right of the legislature to authorize the city to pay the respondent whatever sum she was equitably entitled to, the force and effect of the contract made by Mrs. Reynolds with the city, namely, that it did not estop her from claiming damages under that act, but- that if she had received anything under the agreement with the city, it must be allowed in reduction of any award of damages to her. It appears from their report that the commissioners did take the agreement into consideration and credit the city on such award with the value of the materials which she had received under her contract. So far as these questions are concerned, this court has passed upon them, and they must now be considered res adjudícala and not open for further consideration, at least here. Culross v. Gibbons, 130 N. Y., 447; 42 St. Rep., 527.

The learned counsel for the defendant claims that the act of 1890, chap. 393, is permissive and not mandatory. The language used in the act is not different from that used in the many cases where this question has been before the courts. In The People ex rel. Conway v. The Board of Supervisors of Livingston Co., 68 N. Y., 114, the same language was used by the legislature, and the court held it was mandatory. Judge Earl in his .opinion said, Where the public interest or private right requires that the thing shall be done, then the word ‘ may ’ is generally construed as ‘ shall,’ ” and a peremptory writ of mandamus was ordered, In The People v. The Board of Supervisors of Otsego Co., 36 How. Pr., 1, it was held that where the legislature authorized and empowered the board of supervisors to cause taxes illegally assessed and paid to the county to be repaid, it became their duty to do it, and a peremptory writ of mandamus was ordered. On appeal to the court of appeals, People ex rel. Otsego County Bank v. Board of Supervisors of Otsego Co., 51 N. Y., 401, the court held that the statute was mandatory, the court saying that the words authorized and empowered ” are mandatory when the statute directs the doing of a thing. Many other cases have been examined, but enough have been cited to illustrate the rule that where a party has a claim based upon natural justice and equity permissive words in a statute are construed so as to accomplish what the legislature intended.

The counsel for the appellant claims that the statute requires the expense of the proceeding to appraise such damages to be included in the amount of damage to be raised by local assessment, and the order only requires the common council to raise the h amount of damage, not including the expense of the proceeding : tliat the common council is without power to comply with the order, the only authority being the statute in question. It is perhaps a sufficient answer to this, that chap. 42 of the Laws of 1891, which is the act repealing chap. 393 of the Laws of 1890, provided that the commissioners appointed under the act repealed should be paid by the city out of the general fund, and it appears that the expense of the proceeding was paid by the city without waiting to include it in the amount of damage to be raised.

No reason can be assigned why the city may not include the expense of the proceeding in the amount of damage to be assessed, and reimburse the general fund out of which it was paid, unless it be the act of 1891, above referred to. Certainly noth- 1 ing in the order forbids it, and if the charter authorizes it, it may well be included in the amount to be raised. I do not think it is material as affecting the powers of the common council to comply with the mandamus.

By the act of 1890, the city was to audit and adjust the amount of damages to the respondent’s property, after the amount of such damage had been appraised, and the claim of the counsel for the .appellant that the commissioners had no authority to “ make an .award ” to her for damages to her property is, it seems’ to me, without force. The statute contemplates an appraisal of her damage, and the fact that in their report they say they “ make an award for damages to her property ” adds nothing to the force of the statute, as the statute “ awards ” the amount of damage appraised to her, and when the common council have appraised the damage, the statute directs to whom it shall be paid.

The principal claim made by the appellant is that the act of 1890 has been repealed, and, therefore, there is no law authorizing or requiring the common council to audit and adjust the damages. The counsel’s reasoning seems to rest upon the assumption that the respondent has no claim which she can enforce after the statute has been repealed. In this, I think, he is mistaken. It is not claimed that if this was an award by commissioners in eminent domain proceedings, and confirmed by the court, it would not then be a valid claim against the city and háve the force and conclusiveness of a judgment, with all of its incidents, including that of contract. Mayer v. Mayor, 101 N. Y.,. 284.

But it is insisted that these are#not eminent domain proceedings, and consequently no such character or force attaches to the award' of the commissioners. While it is not a proceeding directed against the property of another for a public purpose, the statute clothed it with the character of such a proceeding, and when the report was confirmed by the court its character was not changed. It had ripened from its equitable nature into a legal and valid claim against the city. The respondent’s damages had been ascertained and fixed; it was then enforceable against the city, and under the authorities it is difficult to see how the legislature could divest her of the claim. People v. The Board of Supervisors of Westchester Co.. 4 Barb., 64; In the Matter of the Commissioners of Washington Park, 56 N. Y., 144; In the Matter of the R. & C. R. R. Co., 67 id., 242.

I do not think it necessary to refer to the statute of 1890 for authority to pay the claim, assuming it to be a valid and legal claim after the report was confirmed.

Section 15 of the revised charter provides that “ the common council shall audit all claims against the city of Buffalo.” A like provision is found in the old charter, and it confers upon that-body power to audit all claims. This is a liquidated claim. Hotiiiug is to be done in addition to what has already been done-to fix the amou it. It has been determined in the manner directed by law, and the' power conferred upon the common council is ample in the absence of the statute of 1890 to audit and adjust it.. The right is clear and the amount is not in dispute; therefore I think the remedy by mandamus to enforce its payment is proper. It is damage occasioned by a local improvement, and should properly be assessed upon the property benefited by the improvement. The order appealed from should be affirmed, with ten dollars costs and disbursements.

White, J.

(dissenting)—-In 1885 the city of Buffalo instituted proceedings in eminent domain to acquire the title to lands for a-public street. At that time (it may be assumed) the relator was the owner in fee of a parcel of land situated on the north side of North street, and that George 0. Greene was the owner of a parcel of land adjoining that of the relator on the east. These parcels of land were three hundred and twelve feet deep, with a frontage of about eighty-eight feet on North street. Prior to 1885 and before the eminent domain proceedings had been instituted there had been erected a large and costly brick double house, covering the North street front of the lands of said Greene and the relator, the partition wall of which was the division line between said lands and which was some three feet west of and parallel to the street to be opened and called Elmwood avenue. The title to the lands necessary for the street was acquired by the city, and it proceeded to and did demolish the easterly half of this house, leaving the title to said three foot strip in said Gr.eene.

The demolition and removal of the easterly half of this house necessarily greatly damaged and impaired the value of the remaining half of the house which stood on the land of the relator. The relator appeared and took pá'rt in the proceedings in eminent domain and claimed that she was entitled to have an award made to her in those proceedings for the damages which she had sustained. The claim was disallowed on the ground that her property did not abut upon the street to be opened and none of her properly had been taken by the city for the proposed improvement, and this determination was acquiesced in by all parties. The proceedings in eminent domain were concluded by final determination on the 11th day of May, 1886. On August 9, 1886, the city requested the legislature to pass a law authorizing it to make just compensation for the injury which had been inflicted upon the relator. Afterwards, and on July 28, 1887, the relator and the city entered into an agreement in writing and under seal, whereby among other things the city conveyed and delivered to her a lot of building material, sidewalks, trees and other property to which it had acquired the title from said Greene in said eminent domain proceedings, and in consideration of such conveyance and delivery the relator covenanted and agreed that she would, and thereby did, relinquish all claim against the city which she had, or claimed to have or hold, or which she might thereafter have, or which might accrue to her by reason of any injury or damage that might result to her premises in consequence or as the result of the opening of said street, and by which she released and acquitted the city from the payment to her of any claim for damages that might accrue as aforesaid, and the relator further covenanted and agreed that she would and did thereby waive, relinquish, abandon and withdraw all objections to and rights and claims which she had or might have in consequence of any irregularity, illegality or invalidity of the assessment made or levied against her, or upon her lands and premises, for the payment of any awards or expenses in the said proceedings in eminent domain or the assessment-roll in connection therewith, and that she would take no proceedings to annul or invalidate the same. The relator, thereupon, in pursuance of said contract, took and received the property so conveyed to her by the city, and no attempt has ever been made to abrogate or rescind that contract.

On May 21, 1890, the legislature passed an act authorizing the city to audit and adjust the amount of damage sustained by the relator in consequence of the opening of the street in question, and directing that when ascertained as provided by the act the amount should be raised by assessment upon the property deemed to have been benefited by the opening of the street. The method of procedure prescribed by this act was by three commissioners, to be appointed by this court. Commissioners were thereupon appointed, who reported to the court on the 2d day of February, 1891, appraising the damages at $5,500, and on the 10th day of February, 1891, the report was approved by the court. Before these commissioners reported, but after they had taken evidence as to the merits of the claim of the relator, on a motion by the city for a stay of proceedings, the fact of the making of the contract of July 28, 1887, was called to the attention of the court, and it ordered that unless the commissioners should be authorized by the relator to deduct from the amount of any damage which the relator might have sustained the value of the property received by her under that contract, the motion for a stay should be granted. The relator consented to the conditions imposed and the motion for a stay was denied. An appeal from the order denying the motion was taken to the general term, where it was affirmed.

On September 21, 1891, the relator requested the city to audit the claim made by her and take the steps requisite to insure its payment, which the city refused to do. Thereupon this proceeding was instituted by an alternative writ of mandamus, requiring the common council to audit and adjust the claim of the relator and proceed to raise the amount by assessment, etc., or show cause to the contrary. The return to the writ alleges substantially the facts as hereinbefore recited. There was no traverse by the relator to the return.

I have read with much care and profit the opinion of Ex-Judge Beckwith, which was written on the motion made by the city of Buffalo in January, 1891, for a stay of proceedings in this case to enable the city to procure á repeal of the act of the legislature of May 21, 1890, on the ground that the existence of the contract between the relator and the city of July 28, 1887, was not before known to the corporation counsel, who made the motion, the contract having been made under the directions of his predecessor in office. I have also read the learned opinion of Judge Hatch, written upon the trial of the issues raised by the writ of mandamus and the return thereto.

It is claimed by the respondent that the decision of the general term of this court which affirmed the order denying the motion of the city for a stay of proceedings is res adjudicata as to the power of the legislature to pass the act of May 21, 1890, and to the effect that the contract of July 28, 1887, did not estop the relator from enforcing her claim under that act of the legislature. The record which was before the general term when that decision was made is not now before us, but it is evident from the opinion of Judge Beckwith, which is published, iu the report of the case in volume 48 of the New York State Reporter, at page 627, that in the affidavits read on the motion for a stay of proceedings claims were made by the relator and the city for and against the validity of the contract of July 28, 1887, and' that the parties ought to have the privilege of trying that 'question upon the merits. The failure of the relator to traverse the return to the writ of mandamus left the allegations of the return upon that subject undisputed and, therefore, to be taken as true for the purposes of the trial of the issues. No claim was thereafter made by the relator on the trial of the issue that she was entitled to any relief against her contract of July 28,1887, or that she had executed or performed said contract under or by reason o£ any fraud, misrepresentation or mistake. The facts as disclosed by the record on the appeal from the order denying the motion for a stay may have differed from those disclosed by the record on this appeal in other respects.

'But even if the decision of our former general term upon the appeal from the order denying the motion for a stay of proceedings were based upon a record substantially the same as the one before us, yet we are not thereby prevented from reconsidering the case upon its merits, and, if need be, reversing or modifying that decision. The doctrine of stare decisis is never applied so as to prevent a court from reconsidering, reversing or modifying its own decision if deemed contrary to principle, where it will not affect transactions entered into nor titles to property or property rights acquired upon the faith of the erroneous decision. The force of the doctrine is measured somewhat by the nature of the question decided.

There can be no doubt that the court should exercise great care and caution in reconsidering a question once decided by it upon the merits, but when convinced that it has made an erroneous decision, which can be corrected without material injury to any one, it is the duty of the court to make the correction.

The rule which I think is applicable to the case before us by us, is stated in the celebrated Legal Tender cases, reported in 12 of Wallace’s Reports, in the opinion by Mr. Justice Story of the United States supreme court, in the following language: “In cases involving only private rights, if convinced we had made a mistake, we would hear another argument, and correct our error,” or as Judge Smith says in the case of Olcott v. Tioga R. R. Co, 26 Barb., 157: “The 3,000 cases overruled, doubted or limited in their application, mentioned in Greenleaf’s Overruled Oases, indicate that the tendency to assert and to carry out what is supposed to bo the right in point of principle is much greater than that of abiding by precedents and of adhering to decisions.” Although this case was reversed on other points by the court of appeals the language quoted as to the doctrine of stare decisis was approved.

" The status of the case at bar is so radically different from that which in my opinion it ought to be, that I am impelled, with deference and respect for the former decision of the court, and at the risk of being charged with temerity, to a discussion of the matter upon its merits.

In the proceedings in eminent domain for opening Elmwood avenue it was claimed by the city that none of the relator’s property was taken, and that, therefore, she was not entitled to an award for the damages sustained by her. Whether or not property of the relator was taken within the spirit and true intent of the constitution, which prohibits the taking of private property for public use without just compensation, is not now open for consideration, because the relator in those eminent domain proceedings acquiesced in the claim made by the city on that subject; the final determination in those proceedings adjudicated to that effect with her consent, and therefore and thereby she was forever debarred from demanding any compensation at the hands of the city for the damages which she claims to have sustained, as a legal or equitable claim recognized by or enforceable at law or in equity.

Such final determination in the eminent domain proceedings, made with the consent of the relator, placed her in the category of owners of property taken for public streets to whom is applicable the language of the court of appeals in the ease of Raddiff's Executors v. Mayor of Brooklyn, reported in the 4th of Com-stock's Reports, at page 207, as follows:

“ The opening of a street in a city is not necessarily an injury to the adjoining land owners. On the contrary, it is in almost every instance a benefit to them. In some instances the land owner will suffer a heavy loss ; and this case may, perhaps, be one of the number, but it is damnum absque injuria and the owner must bear it.”

If now it be true that at the time of the passage by the Legislature of the act of May 21, 1890, the relator had no claim which either the law or equity would recognize or enforce, and it had been so adjudged by the final determination in the eminent domain proceedings, the act in question is void, because it in effect creates or authorizes the creation of a claim in favor of the relator against the city and its enforcement for a cause which had theretofore been adjudged insufficient for that purpose by due pvpcess of law, and for a cause which the courts have condemned times without number. The final determination of the eminent domain proceedings was in effect a judgment, and finally fixed and determined the rights of all the parties thereto, including the relator, and that is the reason why the act of March 3, 1891, repealing the act of May 21,1890, could not 'be invoked by the city as authority for divesting the relator of the rights supposed to have been secured by her judgment under the last named act. See authorities cited by Judge Hatch on page 41-43 of the printed case. And by virtue of that determination the rights of the city became vested, so far as the lands taken by it for Elmwood avenue are concerned, and so far as its acts in that behalf in removing the easterly half of the double house which caused the damage to the relator are concerned. As to the city, the act of May 21,1890, was clearly retrospective, and designed to impose upon it a liability not recognized or enforceable at law or in equity, and a liability which by the final determination in the eminent domain proceedings had been adjudged by due process of the law not only not to exist, but incapable of being lawfully created out of the then existing state of things. Statutes which take away or impair vested rights acquired under existing laws or create a new obligation, impose a new duty or attach a new disability in respect of transactions or considerations already past, should be deemed retrospective and void. People v. Supervisors, 4 Barb., 64; Salters v. Tobias, 3 Paige, 338; Koshkonong v. Burton, 104 U. S., 668; Westervelt v. Gregg, 12 N. Y., 202,

A statute which operates to annul or set aside a judgment of a court of competent jurisdiction and to disturb or defeat rights thus vested is void, and the rule holds good where the matter or thing concerns the public. Mills v. Charleton, 29 Wis., 400.

However eminent may be the authority of the legislature, it is regulated in its exercise by these well settled principles of law common to the whole state and the people whose sovereignty is supreme. The case here is not like those in which it has been held, and properly, too, that the legislature may enact remedial laws, whereby new remedies for existing rights are created where no vested rights are impaired. It is not competent for the legislature to adjudicate in a particular case, prescribe a rule contrary to the general law and order its enforcement; and so, if it shall be claimed that the act of May 21, 1890, assumes the existence of a claim in favor of the relator against the city, which in fact appears to be the inference from the language used, the act is void as an attempt on the part of the legislature to create a claim condemned by the law.

In bis opinion hereinbefore referred to, and which was adopted as the law of the case by our general term on appeal from the order denying the motion of the city for a stay of proceedings, Judge Beckwith says there is no moral reason why the relator should not be made good for any loss she has sustained for a public object, and that whatever technical objections may be raised in a court of law, there is no moral or legal argument that ought to prevlht the legislature from providing for all that justice requires in her case, and that there is no doubt of the power of the legislature to require the city to make her just compensation for the damage she sustained, and the learned judge cites as authorities for these propositions the cases of Town of Guilford v. Supervisors, 13 N. Y, 143; Sinton v. Ashbury, 41 Cal., 530; Borough of Dunmore's Appeal, 52 Pa. St., 374; People v. Flagg, 46 N. Y., 401.

The story of the case of Guilford v. Supervisors is as follows : In 1838 three residents of the town of Guilford, in Chenango county, named Cornell, Clark and Humphrey, were elected commissioners of highways of the town. It does not appear what became of Humphrey, and it is not important to ascertain for our purposes. It was claimed by the town of Guilford that at some time prior to October, 1838, The Butternuts & Oxford Turnpike Company had wrongfully taken possession of a public high-way and bridge located within the town. The town at one of its meetings directed or authorized Cornell and Clark to sue the turnpike company for its alleged wrongful act in taking possession of the bridge. The suit was prosecuted by Cornell and Clark as such highway commissioners, and they were finally beaten on the ground that the suit should have been brought in the name of the town, instead of in their names as commissioners, and they were compelled to pay out of their own pockets the costs and expenses of the litigation. The town then refused to reimburse them for these costs and expenses. Thereupon Cornell and Clark sued the town, and were beaten on the ground that the town as such had no authority in law to authorize the suit against the turnpike company as it was prosecuted (¿ e., in the names of Cornell and Clark as commissioners), and consequently no legal liability on the part of the town had been incurred. Cornell and Clark then procured the passage of a statute by the legislature providing that the question of their reimbursement should be submitted to the electors of the town, and that their decision should be final. The electors rejected the claim, and thereafter the legislature repealed the above-mentioned statute, and enacted another statute requiring the county judge of Chenango county to appoint three commissioners, whose duty it should be to take proof and determine the amount of costs and expenses that had been incurred by Cornell and Clark in the suit against the turnpike company, and requiring the board of supervisors of Chenango county to proceed to collect the amount by levying the same upon the taxable property of the town for the benefit of Cornell and Clark. The town of Guilford then commenced an action against Cornell and Clark and the board of supervisors to restrain the levying and collecting of the tax.

These facts appeared by the answer of Cornell and Clark, to which the town demurred. The board of supervisors did not answer at all. It was finally held, and properly too, that the statute requiring the re-payment to Cornell and Clark of the moneys expended by them at the request and for the benefit of the town in the Turnpike suit was constitutional; that the town was morally and equitably liable to Cornell and Clark for the re-payment of the moneys expended by them, and further, that the action, as brought in the name of the town to restrain the imposition and collection of the tax, would not lie, as the corporate property of the town would not be affected.

The supreme court, when the case was before it at general term, said: “ The equity of the claim of Cornell and Clark was not considered by the court, and for the reason that the question presented was one of strict law depending entirely whether authority to sue had been conferred upon them by statute, and the court held it was not, and here its functions ended. They had no authority to go further and inquire whether, in consequence of a mutual mistake between the electors of the town and Cornell and Clark, the town ought not to pay the costs growing out of it. The judgment of the court has not been interfered with. It is entirely competent for the state to assume and provide for a debt which it is not bound in law to pay, whether decided so or not, and to apportion it upon its territory to which it is justly chargeable.”

The claim of Cornell and Clark, it will be seen, was j ust and valid, and its rejection by the town was evidence of bad l'aitli toward them. That case is not analogous to the one before us, because in that case the town was equitably bound to make good the expense it had authorized to be incurred. In the case before us the claim is one condemned by the law.

The case of The People v. Flagg decides that the power of the legislature of the state to impose taxes upon its citizens, and to dispose of public moneys, is absolute and supreme within its legitimate sphere. But neither of the cases cited, nor any other that I have been able to find, holds that where a private individual prefers a claim which both law and equity hold to be invalid, and uncollectable, and such claim is rejected, the legislature may step in and by statute enforce its acknowledgment and collection. Moreover, conceding the power of the legislature .to appropriate public moneys to objects of charity and for all manner of purposes deemed beneficial to the. whole people of the state, it cannot, in my opinion, raise the moneys for such appropriations by a tax upon any one class of citizens as distinguished from other owners of taxable property in the city, for the sole benefit of another individual or class, to satisfy claims not only not recognized as valid, but condemned by the law of the land, and that is precisely what the act of May 21, 1890, seeks to do. The claim of the relator is not one legally or equitably arising out of the opening of Elmwood avenue. The statute attempts to make it one, and by providing that the tax necessary to meet and satisfy it shall be levied upon the property deemed benefited by the opening of Elmwood avenue. Such would be class legislation in the offensive sense of the term, and is condemned by the letter and spirit of our laws. Further still, the act of May 21, 1890, if enforced, certainly destroyed the contract between the parties of July 28, 1887, and that is not permissible to the legislature. If the legislative power contended for by the relator exists, then at any time after a municipal corporation may have paid its creditor for property or services all that it agreed to pay, and after it had in good faith performed its ■ contract in that behalf without any claim of fraud or mistake and without questioning the integrity of the contract which has been performed, the legislature may by statute compel the payment of more, if in the opinion of a special tribunal created by the same statute for the purpose of determining the question, the creditor received an inadequate price for his property or services under and by virtue of his contract. In my judgment, no such principle has ever found or will ever find lodgment as a rule of law in the jurisprudence of this state. The disposition of parties to disregard, repudiate or violate contracts when entered into with all the solemnity known to the law, and after enjoying the fruits thereof, should not be encouraged by the courts even as against a municipal corporation.

This is an appeal from the order and judgment entered on September 26, 1892, which in substance commands the common council of the city of Buffalo to recognize the claim of the relator as valid and to proceed with its collection and payment over as required by the act of May 21, 1890. There is no notice of appeal from the order which in form confirms the report of the commissioners appointed under the act of 1890.

The question must now be met as to whether we are at liberty to consider and dispose of the matter upon its merits, as to the validity of the statute or the claim made by the relator under it, in the absence of an appeal from the final determination of the court in confirming the report of the commissioners on February 10, 1891. If the statute and the claim are valid, that determination is in effect a judgment, which can only be reviewed by an appeal, or motion to vacate it. But if, as it seems to me is the case, the statute was void for the reasons herein given, all proceedings under it were and are likewise void, because the modes of judicial procedure prescribed by law for the prosecution of a right or for the redress of a wrong are not applicable to such a case. The statute, the claim, and the proceedings which have been had upon them are unique, and are governed only by the terms of the statute itself.

Without elaborating or discussing authorities for this contention, it must be sufficient to say that where a party is compelled to appeal to the courts for active and affirmative assistance to enforce, by the infliction of punishment, if found necessary, the acknowledgment and payment of a claim condemned by law but which the legislature has attempted to create by statute, the court should refuse such assistance, even if by reason of the inadvertence or mistake of the parties the strict forms prescribed by law and practice for reviewing judicial decisions have not been complied with.

The order and judgment of September 26, 1892, should be reversed, with costs.

Order affirmed, with $10 costs and disbursements.

Titus, Oh. J., not sitting.

       Affirming 48 St. Rep., 632


author: Titus, Ch. J.

text:
    Charles Jackson, Resp’t, v. William J. Hovey, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed December 21, 1892.)

    Variance—Pleading served.
    In an action brought in the municipal court of Buffalo to recover for services as hostler, the copy of the complaint served on defendant demanded judgment for twenty dollars, while the original filed with the court demanded forty dollars. A defense was made to the whole of plaintiff’s claim, and no objection raised before the trial court as to the variance in the complaint. II< Id, that a judgment for plaintiff of forty dollars would not be disturbed on appeal.
    Appeal from judgment of the municipal court of Buffalo in favor of plaintiff.

      Clinton B. Gibbs, for resp’t; Walter S. Jenkins, for app’lt.
   Titus, Ch. J.

This action was brought in the municipal court to recover of the defendant for work and services as hostler, in taking care of his horses, and the plaintiff in liis complaint claims for three months’ services at the rate of twenty dollars per month, less the sum of twenty dollars, which the defendant has paid him. The complaint, as it appears in the return, demands a judgment for forty dollars and costs. It appears from the affidavits accompanying the return that the copy of the complaint which was served upon the defendant with the summons demanded but twenty dollars judgment. The complaint, on its face, shows that the plaintiff is entitled to forty dollars. It further appears from the affidavits that when the complaint was originally prepared the typewriter copy contained the demand for twenty dollars; that before it was verified and served the demand was changed in the original complaint from twenty to forty dollars, but that the mistake was not corrected in the copy served upon the defendant. This seems to be conclusively established by-the plaintiff’s affidavits, which are not, in that particular, disputed by the affidavits of the defendant.

The municipal court act, under which the municipal court of Buffalo was organized, is now incorporated into and forms a part of the revised charter of the city. By § 459, in an action arising on contract for the recovery of money only, the plaintiff, at the time of issuing the summons, may file with the clerk of the court a written complaint, setting forth, in a precise and concise manner, the facts constituting his cause of action, specifying the amount actually due from the defendant to the plaintiff, and for which the plaintiff will demand judgment. The complaint must be subscribed by the plaintiff or his attorney, and verified in the manner prescribed by the Code of Civil Procedure, and must, together with the summons, be served upon the defendant. By § 461 it is provided that “ in case the defendant fails to answer the complaint, as herein provided, he shall be deemed to have admitted the allegations of the complaint, and the court, upon the filing of the summons and complaint, with the proof of due service thereof, shall forthwith enter judgment for the amount demanded in the complaint, without further proof.”

These provisions are practically the same as the sections of the old Code ; where the action arose upon contract for the recovery of money only, the complaint was required to be served with the summons, which must state the amount claimed, when the clerk could enter judgment without application to the court. The practice is practically the same under the present Code of Civil Procedure. §§ 420 and 1212.

Section 1207 provides, when there is no answer the judgment shall not be more favorable to the plaintiff than demanded in the complaint. When there is an answer, the court may permit the plaintiff to take any judgment consistent with the case made and embraced within the issue.

It was held in Trowbridge v. Didier, 4 Duer, 448, that the defendant has the right to consider the complaint which is served upon him as that which he is required to answer, but under the Code no variance between the allegations of a plaintiff’s pleading and the proof can now be material, unless it is shown that the adverse party was actually misled. So it is provided by the municipal court act, § 458, that “ a variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby,” and the pleading may be amended at any time, even upon appeal, when, by such amendment, substantial justice will be promoted.

It cannot be seen how the defendant has been prejudiced. A defense was made in the court below to the whole of the plaintiff’s case, and he resisted a recovery for any sum. The demand for judgment was not a material factor in the case. The result would not have been different if the defendant had raised the objection upon the trial, as the court would have been obliged to allow an amendment making the demand correspond with the proofs. But no amendment was necessary. The complaint as it was verified and filed with the court demanded judgment for forty dollars.

If the defendant had not appeared in the court below a'different question would be presented.

The plaintiff could not then have taken judgment against the defendant for a greater sum than that demanded in the copy served upon him. This provision for taking judgment by default for the amount demanded in the complaint has no force or application where the defendant appears and answers, as he may do. Section 460.

The issue is then joined, and the rules applicable to ordinary proceedings in that court control, and the complaint in the action filed with the court fixes the rights of the parties, the cause of action and the amount he is entitled to recover.

The case of Pharis v. Gere, 81 Hun, 444, cited by the defendant’s counsel upon his brief, has no application. There the court would not allow the plaintiff to amend his complaint so as to recover treble damages which were awarded plaintiff, but limited him to the amount claimed in the complaint. As has been stated, no amendment was necessary here, as the complaint claimed an amount large enough to cover the verdict.

The proceedings in justice’s court which apply to the municipal court, § 457, Revised Charter, are necessarily informal, and great particularity is not required. Section 2940 of the Code of Civil rrocedure provides that a party may state his claim to a justice of the peace, and he need not formally demand judgment for any sum, but in making his proof the justice will give him such judgment as the proof warrants within the limit- of his jurisdiction.

It seems to me, therefore, that the judgment should be affirmed, with costs.

Hatch and White, JJ., concur.