author: McADAM, J.

text:
    Clara H. Porter et al. v. Washington S. Valentine.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Evidence—Competency.
    An objection to receiving in evidence the contract sued on as “incompetent and immaterial” does not raise the objection that defendant’s name was signed by a third person without authority.
    2. Signatures—Pencil writing.
    A signature with a lead pencil is sufficient, though other signatures to the same instrument wei’e in ink.
    Appeal from first district court.
    Action by Clara H. Porter and another against Washington S. Valentine on a fire insurance policy. There was a judgment in favor of plaintiffs, and defendant appeals.
    N. A. Prentiss, for appellant; Menken Bros., for respondents.
   McADAM, J.

—The action is to recover from the defendant, one of the underwriters of the South and .North American Lloyds, the sum of $66.67, his proportionate part of a loss under a policy of fire insurance for $2,000 issued to the plaintiffs on their two-story frame house in Danbury, Conn. The policy was made by Whipple & Co. as attorneys in fact for the underwriters, and recites the fact that they are such attorneys for each firm or individual whose name appears thereon preceding their signature. On June 18, 1895, the property insured was destroyed by fire. Due notice was given to Whipple & Co., and the proofs of loss were thereafter duly filed with them as provided for by the contract. At the trial the policy was offered in evidence. Preceding the attorneys’ signature, the names of the underwriters, with two exceptions, appeared in print. Through those of Albert Fuentes and' James Walsh pencil marks are drawn, and in place of Fuentes’ name appears in pencil “ W. S. Valentine,” and instead of Walsh’s “ Myers,” also in pencil. The policy was objected to as incompetent and immaterial, and upon the further ground that the name of the defendant was not on it. These objections were overruled, and exceptions taken.

The policy was neither incompetent nor immaterial, for the action was founded upon it. “ By ‘ competent evidence ’ is meant that which the very nature of the thing to be proved requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry.” Greenl. Ev. § 2. Evidence offered in a cause, or a question propounded, is material when it is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case. Black, Law Diet. Relevant,” as applied to evidence, must be understood as meaning that it touches upon the issues which the parties have made by their pleadings, so as to assist in getting at the truth of the facts disputed. Whatever evidence will withstand this test should not be objected to, unless to admit it would be to override some other formal rule of evidence. See Platner v. Plainer, 78 N.Y. 90. If the defendant intended to object that the authority of Whipple & Co. to bind the defendant should first be proved, that objection ought to have been specifically stated. It is an ancient and sound rule that when the objection is to the mode of proving a fact, and not to proof of the fact itself, it must be distinctly placed upon that ground ” (Murphy v. People, 4 Hun, 102, 103, affirmed 63 N.Y. 590),“ so that the opposite party may obviate the objection by proving the fact in a legal manner ” (Vincett v. Cook, 4 Hun, 318, 321. See 2 Wait, Law & Prac., 3d ed., 634). tJpon the same principle the court in Stevens v. Brennan, 79 N. Y. 259, said:

“Ho ground of objection was specified, and it is now plain that she [the witness] was incompetent to testify on the point to which the question related, under section 399 of the Code. The general objection could only be considered as applying to competency or materiality of the evidence, and not to the competency of the witness to testify upon the subject. Hon constat, if the objection had been put on that ground, the fact would have been proved by other witnesses.”

Indeed, every ground of objection not specified which is capable of being obviated by evidence is waived. Marston v. Gould, 69 N. Y. 220. Thus, an objection to admission in evidence of a copy on the ground that it is incompetent and immaterial does not raise the question that the paper was improperly admitted because it was a coj>y and not the original. Atkins v. Elwell, 45 N. Y. 753. The party must stand or fall by the specific ground taken when the ruling was made. Baylies, Trial Prac. 202.

The objection that the name of the defendant did not appear upon the policy as one of the underwriters was not true in point of fact. It appeared thereon in pencil, which is as effectual as if it had appeared in type, like other names, or in ink. Daniel, Heg. Inst. § 74; Brown v. Bank, 6 Hill, 443 ; People v. White, 24 Wend, 530, 531 ; Edw. Bills, 149 ; Story, Prom. Hotes, § 11; Mayor, etc., v. Eisler, 2 Civ. Proc. R. 125; Barnard v. Heydrick, 49 Barb. 62; Insurance Co. v. Boss, 10 Abb. Prac. 260, note. The fact that a line was drawn through the name of Albert Fuentes, and the defendant’s name substituted in pencil, is of no consequence, so long as the substitution ivas legally made before the policy was issued. If the defendant intended to claim that the alteration should be explained by the person seeking the benefit of the alteration, that objection should have been specifically stated to, and passed upon by, the trial judge, before calling upon an appellate court to consider the question for the first time upon appeal. Baylies, Trial Prac. 201.

The plaintiff next offered in evidence the following stipulation, signed by John T. Fenlon, the attorney for the -underwriters :

“Matter of policy No. 32,545, South and North American Lloyds.

“It is hereby stipulated by John T. Fenlon, attorney for the South & North American Lloyds, that Porter and Leonard, assured under policy No. 32,545, South & North American Lloyds, have until July 18, 1896, in which to bring an action under said policy of insurance against the underwriters who may not pay the amount on which the compromise has been ; made, being at 66f of the loss, drafts for which have been ' drawn against said underwriters by Whipple & Company; the extension of time to sue being in consideration of the reduction to 66f per cent, in the compromise; it being understood that the compromise is to be beneficial only to those paying the drafts on presentation, or within the time allowed.

“Dated June 11, 1896.”

Annexed to the stipulation are 18 "drafts drawm on the different underwriters, including one on the defendant, in the following words:

“ $44.45. New York, June 1st, 1896.
. c.£ At five days’ sight, pay to the order of L. D. Garrett Co., attorney for 0. PI. Porter and F. H. Leonard, forty-four dollars; being his claim against you for your full liability under policy No. 32,545 of the South & North American Lloyds for loss by fire or water.
“ Whipple & Company, Attorneys. “To W: S. Valentine, Produce Exchange, City.”

This was also objected to as incompetent and iminaterial, but it was neither. If the defendant intended to question the power of Fenlon to make the stipulation, that objection ought to have been made specifically at the time, that it might, if possible, have been obviated. Wolfe v. Insurance Co., 39 N. Y. 49; and vide supra. Assuming as we must that the stipulation was made by authority of the underwriters, we have a writing by means of which they secured a reduction to 66§ per cent, in a compromise of the loss, and following out the stipulations are the different drafts drawn on the several underwriters. Taking the policy bearing the name of the defendant as an underwriter, and the draft drawn on him as an underwriter by the attorney, Fenlon, the connection of the defendant with the association, as an underwriter, was prima facie established. The defendant might, if he had felt so disposed, have taken the stand, and testified that he had no connection whatever with the association, that his name appeared on the policy without his knowledge or consent, that Fenlon had no authority to make the stipulation for him, that the drawing of the draft upon him was unauthorized, and thus have destroyed the prima facie case which the plaintiff established. He did not choose to do this, and the justice found for the plaintiff.- While it is true that a person seeking a recovery of another in an action at law is charged with the burden of proving the issue in his favor, yet, whenever the law interposes any presumptions in his favor, it often happens that he is only called upon to make prima facie proof. Therefore it is material to know what in law is regarded as prima facie evidence, ■so that its production by a party puts the other party in a position that he must rebut it to prevent a recovery against him. Prima facie evidence may be said to be such as in law is regarded as sufficient to entitle a party to a recovery until it is fairly overcome by rebutting proof. Wood, Pr. Ev. 665 ; Kelly v. Jackson, 6 Pet. 622. Greenleaf, in his work on Evidence .(14th ed., vol. 1, p. 104, note), puts the same proposition in these words:

“ In civil cases, when the plaintiff has introduced sufficient ■evidence to make out a prima facie case he may rest on his proof, and it becomes the duty of the defendant to introduce evidence to rebut the case made by the plaintiff.”

At the close of the cause, if a prima facie case be established •on the part of the plaintiff, and it is undisputed by the defendant, it has been always usual to direct a verdict for the plaintiff. People v. Cook, 8 N. Y. 75; Nichols v. Goldsmith, 7 Wend. 160 ; Rich v. Rich, 16 Wend. 676 ; Crawford v. Wilson, 4 Barb. 504, 518. We think the plaintiffs established a prima facie case, and that upon the facts proved, with the inferences to be drawn from them, the motion to dismiss, in the absence of a motion at the close of the case to strike out any of the documentary evidence, was properly denied (United States Vinegar Co. v. Schlegel, 143 N. Y. 544; 62, S. R. 826) that the •defendant might give whatever explanation he had to offer in defense. There was no explanation given. The parties are concluded by the mode of trial. Home Ins. Co. v. Western Transp. Co., 51 N. Y. 93. And a fact assumed is to be regarded as proved or admitted. Todd v. Nelson, 109 N. Y. 324; 15 S. R. 2Y0. The defendant rested exclusively upon technical objections, and must not complain if he is is held to .strict rules in their application.

Substantial justice iras been done. The exceptions are without merit, and the judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: HATCH, J.

license: Public Domain

text:
    Felice Tocci v. Valeria L. D. Powell et al.

    (Supreme Court; Appellate Division, Second Department.
    October 30, 1896.)
    1. Landlord and tenant — Liability for rent — Destruction of Premises.
    Laws 1860, c. 345, exempting a lessee from liability for rent if the premises are destroyed during the term, does not apply where the lease contains a covenant providing against such contingency.

      3. Same—Pleading and proof.
    A provision of a lease that the rent should cease in case the premises should be destroyed by Are is not available as a defense in an action for rent unless pleaded.
    Appeal from trial term.
    Action by Felice Tocci against Valeria L. D. Powell, impleaded with Gustav Prell. From a judgment entered on the-decision of the court on a trial without a jury, defendant,, Valeria L. D. Powell, appeals.
    James P. Lowrey, for appellant; Albert Reynaud, for respondent.
   HATCH, J.

—The action is brought to recover certain arrears of rent secured to be paid by the terms of a written lease. By the provisions of the lease the yearly rental secured .to be paid was the sum of $600, payable in installments of $100 each upon the 1st days of April, May, June, July, August, and September, respectively. It was conceded, and the court, found, that the rent for the months of May, June, July, August, and September, 1893, was wholly unpaid, for which sum judgment, with interest, was awarded to plaintiff. It appeared upon the trial that the buildings upon the premises were wholly destroyed by fire on the 16th day of September, 1893. The lease contained a covenant that, “ in case of the total destruction of the premises, by fire or otherwise, the rent shall be paid up to the time of said destruction, and then and from thenceforth this lease shall cease and come to an end; provided,, however, that such damage or destruction be not caused by the carelessness, negligence, or improper conduct of the party of the second part, his agents or servants.” The parties themselves having provided by this covenant against the contingency of destruction of the premises by fire, it furnishes the measure of defendant’s exemption from liability, and the statute (Laws 1860, c. 345) has no application. If it did, the rule, which is decisive of the case, would not be thereby changed, for in substantial respects the statute and the covenant is the same. The total destruction of the buildings alone did not have the effect of exempting defendant from the payment of rent, because such destruction must have taken place without the concurrent carelessness, negligence, or improper conduct of the defendant. This is the terms of the covenant, and also the provision of the statute. In order that defendant be relieved from payment, he must bring himself within the terms of the contract under which he "claims to be relieved, otherwise he is under both a contract and a common-law liability to pay. Defendant neither alleged in his answer nor offered proof upon the trial to show that the fire was occasioned through no fault of his, in consequence of which a case was not made for exemption from liability. There was nothing before the court upon which it could so find. The right of action under the lease survived the fire, and plaintiff could maintain an action thereon for the rent. McGregor v. Board, 107 N. Y. 511. 12 St. Rep: 288 ; Roe v. Conway, 74 N. Y. 201.

The judgment should be affirmed, with costs.

All concur.


author: DALY, P. J.

text:
    Edward J. Markowitz v. Emil Messner.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Money paid by mistake—Recovery.
    Money paid by plaintiff for an assignment to him by defendant of accounts against other persons, under an agreement that only good accounts should be included, was not paid by mistake as to accounts which afterwards proved to be worthless, and therefore plaintiff cannot recover the amount of the worthless accounts in an action at law.
    Appeal from ninth district court.
    Action by Edward J. Markowitz against Emil Messner. There was a judgment in favor of defendant, and plaintiff appeals.
    Malcolm K. Lawrence, and Lawrence, Sample & Clark, for appellant; Henry L. Scheurman, for respondent.
   DALY, P. J.

—The plaintiff and defendant, who had been co-partners, agreed, upon dissolution, that the plaintiff should buy all the assets, paying 50 per cent, of the value thereof to the defendant,- a deduction of 7 per cent, being made from the face value of such assets as consisted of outstanding accounts receivable. A list of such accounts was prepared, and was included in the written agreement of dissolution, which also proved that the statement of assets ivas “ correct in every respect.” The plaintiff subsequently discovered that the debtor, in one of his accounts, described in the list as “ J. Schoenfield, $180,” had made an insolvent assignment before the execution of the agreement; and this action is brought to recover back the sum paid for the account, on the ground that it had been paid by mistake. Evidence was received, under objection, that it was agreed between plaintiff and defendant, who, it seemed, had more to do with the books than the plaintiff, that only good accounts should be included in the list, and that the defendant stated to the plaintiff, when the list was made up, that all the accounts in it were collectible. Granting the facts to be as the plaintiff claims, he has no action at law for the recovery of the sum paid for Schoenfield’s account. It was not paid by mistake, but in pursuance of the written agreement of dissolution. If the - testimony he produced established that the parties to that agreement intended that only collectible accounts should be covered by the contract and inserted in the list, and that there was a mutual mistake as to this particular account, it furnishes ground for reformation of the contract by striking out the account in question so that it should not pass under the transfer of assets, but remain a subject of accounting between .the co-partners. The mistake, if any, was in failing to draw the contract in conformity with the understanding of the parties, and the relief of the plaintiff, if any, is in equity, where his damages can be recovered, if his .equity is established. We do not, of course, express any opinion upon the sufficiency of the testimony offered. This view renders unnecessary a discussion of the other points ably argued in the briefs. It is clear that the effort of the plaintiff was not, by his testimony, to explain the terms of his contract, but rather to reconstruct it. To do this, he must go into •equity.

Judgment affirmed, with costs.

All concur.


author: CULLEN, J.

text:
    Julia A. Macauley v. Catherine Schneider.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 30, 1896.)
    1. Negligence—Defective sidewalk—Liability of property-owner.
    A person who maintains a nuisance on a sidewalk is liable for injuries cause thereby, though the city is also liable.
    ■2. Same—Proximate cause.
    The proximate cause of injuries resulting from slipping ónice formed by water discharged on a sidewalk from an awning maintained by defendant, without authority, was the ice, and not the awning; and therefore defendant was liable only in the case the mode adopted by him of discharging the water from the awning was negligent or improper.
    Appeal from trial term, Kings County.
    Action by Julia A. Macauley against Catherine Schneider for personal injuries. From a judgment entered on a verdict in favor of plaintiff * and from an order denying a motion for new trial, defendant appeals.
    Hugo Hirsh, for appellant; Abram H. Dailey, for respondent.
   CULLEN, J.

—This action is brought to recover damages •for personal injuries sustained by the plaintiff by falling upon ice upon a sidewalk in the city of Brooklyn. The complaint álleged that the defendant was the owner of the adjacent premises, and maintained an awning extending over the sidewalk, so constructed as to receive the falling rain and snow, and drain them through a gutter into a leader, at the foot of which the water was discharged upon the sidewalk; that in •cold weather it froze and became dangerous. On the trial, the construction of the awning and leader was undisputed. The defendant contended that they were built by her tenant,, and that she was not responsible for them. The evidence, however, was sufficient to require the court to submit this question to the jury. There was shown no permission or authority from the city to construct the awning or leader. The-plaintiff gave evidence tending to show that she fell from slipping on some ice on the sidewalk, at the foot of the leader, and so received her injuries.

When the plaintiff rested her case, and also at the close of the whole evidence, the defendant moved to dismiss the complaint, on the ground that the city alone,- and not she, was liable for the injury. This motion was denied. This ruling was-correct. It is undoubtedly true that the duty of maintaining its streets in a reasonably safe condition for travel rests upon the city, and for a failure to discharge that duty the city is liable. But, though the city may be liable, it by no means follows that other persons who have contributed to the unsafe condition of the streets are not also liable. Here, if the awning and leader were so constructed as to render the discharge of water on the sidewalk dangerous to travelers, the person who erected such structure was an active participant in the wrong and liable for it. The case is to be distinguished from those of Moore v. Gadsden, 87 N. Y. 84, and Wenzlick v. McCotter, Id. 122. In the first case the defendant did not contribute to the obstruction upon or dangerous condition of the sidewalk. He was the owner of the adjacent lot, and the natural grade of the premises was such that the water flowed from his land upon the sidewalk. It was held that he was not bound to change the natural condition of his property, so as to prevent the water from flowing into the street. In the second case the water was discharged on the sidewalk from a leader on the front or face of an adjacent house. The defendant was held not liable, because he neither constructed the leader, nor used it after construction. Mor is the principle of City of Rochester v. Campbell, 123 N. Y. 405, 34 S. R. 77, applicable here. In that case it was sought to make the abutting owner hable for. injuries caused by the unsafe condition of the sidewalk ; not on the claim that the defendant in any wise, by his affirmative act, contributed to that unsafe condition, but because he had failed to comply with the requirements of the city ordinance that he should remove snow and ice. The present case falls within that of Kirby v. Association, 14 Gray, 249, where it was held that the defendant was liable for any nuisance in the public street to which it had contributed, but not liable for failing to comply with the city ordinance which required it to clear the sidewalk of snow and ice.

■ But, though we think the plaintiff made out a case justifying its submission to the jury, we think it was submitted to the jury upon an erroneous theory, and that the question is properly raised by the exceptions of the defendant. The court instructed, the jury that, no authority for the construction of the awning or leacler upon the sidewalk having been shown, these structures were unlawful and a nuisance. This charge was correct, but the court further charged that, if the plaintiff slipped on ice formed by the water running from the leader, the Ílaintiff’s case was made out. This, we think, was incorrect. )oubtless, as the leader and awning were in the 'public street, and therefore constituted a nuisance, the defendant (if she maintained them) would be liable to any traveler who was directly injured by them. But the plaintiff was not injured by the awning or by the leader, but from the fact that the water discharged by the leader froze on the sidewalk. Therefore there intervened between the structures and the injury to the plaintiff another contributing cause, the falling and freezing of the water. The water would have fallen on the sidewalk had there been no awning, and, falling there, would have been liable to form ice. It is probably true that, by collecting the water and discharging it in bulk at a single place, the liability to form ice and render the sidewalk dangerous was very much increased. But, granting this, then the cause that occasioned the plaintiff’s injury was not the existence of the leader and awning in the highway as obstructions thereon, but the collecting together of water, and discharging it on the sidewalk. We see no difference between this case, where the rain first fell on the awning, and one where the water was collected from the premises of the adjacent owner, and similarly discharged on the sidewalk. Tire place where the water originally fell and from which it was collected did not affect or change the liability for discharging the water on the sidewalk. Nor aid the ordinance of the city directing that the water be discharged under the sidewalk make the defendant’s method of discharge unlawful per se, but only evidence authorizing the jury to find the method improper. Knupfle v. Ice Co., 84 N. Y. 488. We think, therefore, that the case falls within the rule laid down by Judge Danforth in Wenzlick v. McCotter, suprathat it should have been submitted to the jury, as if an action for negligence, to determine whether the mode of discharging water adopted by the defendant was improper or negligent, and the defendant held liable only in case the jury answered that question affirmatively; or, if submitted as an action for nuisance, the question of the existence of the nuisance should have been left to the jury to determine as a question of fact, the jury being instructed that, if the defendant maintained the leader in such a position as to render the highway unsafe and dangerous to travelers, that constituted a nuisance. But the learned trial judge substantially held that, if the plaintiff slipped on ice formed by water flowing through the leader, the defendant was liable, because the leader was' unlawful, apart from any question of whether the act of the defendant in discharging the water was either negligent or created a nuisance.

The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event.

All concur.


text:
    Marianne O’Gorman v. Walter Harby.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Landlord and tenant—Duty of landlord to repair.
    A landlord whose duty it is to repair the leased premises must make such repairs within a reasonable time.
    Appeal from eighth district court.
    Action by Marianne O’Gorman against Walter Harby for rent. The defense was that defendant was evicted by reason of plaintiff’s failure to supply the premises with heat sufficient to make it fit for occupancy as a dwelling-place, and to prevent the continuance of loud noises caused by steam pipes in the building. There was a judgment in favor of plaintiff, and defendant appeals.
    Hugh L. Cole and George Newell Hamlin, for appellant; Richard O’Gorman, for respondent.
   DALY, P. J.

—This is an action for the rent of rooms in the .apartment house Ho. 25 West Eighty-fourth Street for the month of January and February, payable in advance. The tenant moved out in the first week in January, and resists payment of the rent, and counterclaims damages on the ground that he was deprived of the beneficial use and enjoyment of the premises by the failure of the landlord to furnish the steam heat which the tenant was to receive, and that they thereby became untenantable. The defense was made out by the evidence, for it appears that owing to a defect in the heating arrangements, over which the plaintiff, as the landlord, had exclusive control, the defendant’s apartments were cold during the month of December, and up to the time he moved out, in the first week in January, and that the defect was not remedied until the last part of January, or in February. The landlord’s agent testifi ed that the cause of the insufficient heat was the stoppage in the return of the steam; the point of the stoppage was next to the boiler, which was in the cellar; that steam fitters were sent around the latter part of December, and remedied the trouble for the time being by attaching a valve to the top of the riser in the defendant’s apartment, but there was further trouble in the stoppage of the return to the radiators ; and that this was not remedied until the latter part of January, or, as he afterwards said, until February. Ho work was done in December, because of a strike in the steam-fitting trade. But as the tenant did not move in December it is not, perhaps, necessary to discuss the question whether the inconvenience resulting from a strike is to fall upon the tenant or upon tho landlord; but it can hardly be claimed that such a cause excuses delay by the latter in performing his contract, and that-the tenant must meanwhile remain in the apartments, suffer from the cold, and pay the rent. The facts of the case do-warrant us, however, in saying that in matter of repairing and remedying defects, as between the landlord and the lessee of rooms in an apartment house, a reasonable rule prevails. If after notice the landlord proceeds with proper diligence to do-what is necessary, he is allowed reasonable time to remedy the-defect. If the tenant waits a reasonable time for him to do* the work, and it is not done, he may remove from the premises, if he has been and is deprived of the beneficial use and enjoyment of them. In this case it appears that after the strike, and in the latter part of December, steam fitters were sent to-the apartment, who made an alteration in the apparatus, but-without preventing the trouble. The true cause was not discovered and remedied, apparently, until two or three weeks • after the tenant moved out. The respondent relies upon the - principle of Suydam v. Jackson, 54 N. Y. 450, and Lansing v. Thompsori, 8 App. Div. 54, that the statute (Laws 1860, c. 345)-has reference only to an injury to the premises resulting from sudden and unexpected action of the elements, or other causes, and not to gradual deterioration and decay. But it is clear that the defects in this case Were not the result of the last named cause, but either of faulty construction, accident, or mismanagement by the landlord’s agents, whose duty it was to ■ keep the steam apparatus in repair. That the defects were discovered and remedied with little trouble, and without extensive reconstruction or repairs, is proof that there had been no gradual deterioration. The tenant attempted to keep warm by the use of lamps and gas logs in his apartment, but it cannot be held that he was bound to do this during a protracted discontinuance of the steam heat which his lease calls for. In the case of a prompt compliance with a notification of defect in the heating apparatus, temporary inconvenience must be suffered by the tenant, under a reasonable construction of the ■ relations between the parties." But in this case the facts establish that an unreasonable infliction Avas imposed upon him, and his abandonment of the premises was justified. It would seem that the tenant had made out a good defense to the February rent, and was entitled to counterclaim, as against the January rent, which was payable in advance (Giles v. Comstock, 4 N. Y. 270), for the value of the premises after his-removal therefrom, which he lost through plaintiff’s default - (Denison v. Ford, 7 Daly, 384).

Judgment reversed and a new trial ordered; costs to the = appellant to abide the event.

All concur.


author: BISCHOFF, J.

text:
    Charles Tyler v. Third Ave. R. Co.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Appeal from new york city court—Review of facts.
    The appellate term -of the supreme court will not review the facts on appeal from the general term of the city court of New York.
    .2. Damages—Permanent injuries—Pleading.
    Plaintiff may recover for permanent injuries, though there is no special allegation thereof in the complaint.
    ,3. Witness—Credibility—Instruction.
    It is error to charge that “the jury are not bound to believe the testimony of any of the witnesses ” where there were several disinterested witnesses, whose testimony was not contradicted, and was not inherently improbable.
    Appeal from city court of New York, general term.
    Action by Charles Tyler against the Third Avenue Railroad •Company. From a judgment of the city court affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals.
    John Vernon Bouvior, Jr., for appellant; Noah Cornwell and Charles C. Nott, Jr., for respondent.
   BISCHOFF, J.

—The plaintiff was the driver of a street car ■owned by the Second^ Avenue Railroad Company, and was injured through a collision between such car and a cable car controlled by the defendant’s servants under the following circumstances: At about 1 o’clock in the morning of October 29, 1894, plaintiff was driving his car up the Bowery, upon a track used jointly by the Second Avenue Railroad Company and by the defendant, and approached Grand Street prepared to turn easterly upon the tracks on that street, such being his regular route. The approach of a Grand street car upon the intersecting track which he intended to use caused him to come to a stop when on the spur connecting the Bowery track with the Grand Street track, but with the rear of his car overhanging the Bowery track. The Grand Street car passed in front 'of him, stopped, discharged and received many passengers, and had started, when the defendant’s car, approaching from the rear on the Bowery track, crashed into the overhanging rear platform of the plaintiff’s car with considerable force and he was injured. This was the plaintiff’s testimony, and the facts were not shown to have been otherwise, materially, by the other witnesses called. The defendant adduced no evidence, but moved a dismissal of the complaint upon the ground that, as matter of law, there was contributory negligence, and that the defendant’s servant was not shown to have been in fault. If the plaintiff’s story was correct, his car was in the position in which it was struck for a considerable period, during which the defendant’s car was approaching from the rear, and the inference must be that the defendant’s gripman either failed to note that position, with ample opportunity to stop his car, or, if unable to observe the situation on account of the darkness* was reckless of consequences in his approach. Necessarily the stoppage of a car in front was to be anticipated, in the course-of travel along the street, by the defendant’s servant; and the evidence shows that this was not a sudden stoppage, such as might bring about an unavoidable collision. The Grand Street car passed the plaintiff’s car when the latter had come to a stop* and, after coming to a stop itself, discharged 18 or 20 passengers, and took on about 10 or 12. - It then started, and after this the collision occurred. The ¡ffaintiff testified that his car was standing still for half a minute, and so it must, indeed, if he was correct in his account of the attendant circumstances. But the appellant urges the plaintiff was racing his car against the Grand Street car for a position on the Grand Street track, and so was negligent. It might, perhaps, be inferred from his testimony to the effect that the Grand Street car cut him off,” and that he had to “ jerk his horse” off the track, that such was the fact; but while he was thus at fault in his relation to his employers, or to persons upon the highway, this was not negligence contributory to this accident, since its effect had ceased, and a condition of affairs quite disconnected from the plaintiff’s-act existed at the time of the collision. The plaintiff' was not negligent, so far as appears, in hauling his car upon the spur or switch, since, of necessity, this was a part of his route whereon he was called upon to exercise particular vigilance in avoidance of a collision with the crosstown cars ; and there is no evidence of any recognized custom which called upon his fellow-servant, the conductor, to make signals to the cars in the rear that the car had come to a stop, when the fact itself could only be disregarded through carelessness upon the part of those controlling such cars. It would have been a manifest error to have withheld the case from the jury.

The appellant’s further argument for a reversal deals with certain portions of the charge, and with the propriety of the award of damages as made by the jury. As to whether or not the verdict was excessive, no inquiry may be had upon this appeal. The matter was within the functions of the general term below, but does not fall within ours. Davidson Steam-Pump Co. v. Peerless Manufg. Co. (Com. Pl.), 13 N. Y. Supp. 268, and cases cited. Exception was taken to an isolated part of the charge wherein it was claimed that the'trial justice submitted merely the question of the defendant’s negligence to the jury, as the test of recovery, and omitted mention of the rule as to contributory negligence. At the outset the jury were properly instructed upon the question of contributory negligence, and the words to which the exception was taken had to do solely with the defendant’s responsibility for the negligence of its servant, the gripman. The instruction was clearly expressed, and could not reasonably have been understood in any manner other than as dealing with the matter of attributable negligence.

A further claim is made that the justice erroneously omitted from his statement of facts the point that the plaintiff may have been racing his car with the Grand Street car, and the appellant refers to an exception which is claimed to present error in this respect. Actually the exception deals with an entirely different question, and was not well taken, but the court was not required to enter upon any dissertation on the facts, and the rules of law were properly laid down.

Mext it is urged that the jury were improperly allowed to make an award for permanent injuries in the absence of any special allegation of such damage in the complaint, but, upon authority, an allegation of special damage in this regard was not required (Ehrgott v. Mayor, etc., of New York, 96 N. Y. 277), and the complaint contained ample general averments of injury, as in the casp'cited.

The propriety of the refusal of two requests to charge remains to be considered. The first was: “ That if the jury believe that the plaintiff was taking chances in attempting to cut off the Grand Street car, he has been guilty of contributory negligence, and cannot recover.” It is obvious that this request assumed the fact that the plaintiff’s act in so taking chances was an efficient cause contributory to the accident, whereas there was evidence to the contrary of the assumption; hence the refusal ivas proper.

The remaining request was to charge: ce The jury are not bound to believe the testimony of any of the witnesses who have presented their testimony here a.t this trial.” In view of the fact that this proposition went to the credibility of several disinterested witnesses, whose testimony was not contradicted nor laid open to question through inherent improbability, the correctness of the ruling is apparent. Lomer v. Meeker, 25 N. Y. 363 ; Howe v. Schweinberg, 4 Misc. Rep. 73; 53 S. R. 72.

An exception was taken to the court’s refusal to charge as requested m another instance, but the record shows that the charge itself, as made, covered the question in point in so far as could be asked, and such was the ground of the ruling as expressed.

The judgment must be affirmed, with costs.

All concur.


author: HARDIN, P. J.

text:
    Peter McFarland v. New York Cent. & H. R. R. Co.
    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Master and servant—Defective appliances.
    The evidence does not clearly indicate that the defects complained of were the cause of the injury received where it shows that plaintiff’s hand was crushed by, deadblocks while he was by daylight coupling a car to a slowly-backing train ; that one deadblock was perceptibly lower than the other because twisted, yet presenting a resisting surface as a bumper ; and that tieadblooks vary in size and thickness. Goodrich v. Railroad Co., 22 N. E. 397, 116 N. Y. 398, distinguished.
    Appeal from trial term, Cayuga County.
    Action by Peter McFarland, against the New York Central & Hudson River Railroad Company for damages for personal injuries. From an order denying a motion for a new trial, where plaintiff recovered a verclict of $5,000, defendant appeals.
    On the 26th of'April, 1893, and for some time prior thereto, the plaintiff was in the employ of the defendant as brakeman, and lie alleges that, while he was so employed on that day, he was directed by the defendant’s officers to connect a car then standing upon defendant’s tracks at Red Creek, N. Y., with the train of cars on' which plaintiff was acting as brakeman. He alleges that the car was improperly constructed, and had been allowed to become and be in a dangerous and unsafe condition; that one of the bumpers of the car had become loose, and twisted from its natural and proper position, so that a person could not safely and securely go or be between that car and another car for the purpose of coupling the same; that the car had remained in the possession of the defendant for several days; that the defendant knew of the defective condition, and gave .the plaintiff no notice thereof ; and that the plaintiff had no knowledge of such defect. It is also alleged that the car had not been carefully inspected when it was tendered to the defendant by a connecting road ; that the defendant negligently and carelessly allowed the car, in such improper and unsafe condition, to be used upon its tracks; that, while the plaintiff was engaged in coupling the car to a train, his left hand was caught and crushed between the cars, and his hand rendered useless, and that the same had to be amputated. The plaintiff alleges that the injury was received without any negligence on his part, and that there was no want of care on his part which contributed to the accident. The answer admits that the plaintiff was in the employ of the defendant as brakeman at the time mentioned, and that he sustained some of the injuries mentioned in the complaint. The answer alleges that the injuries were sustained by reason of the plaintiff’s negligence in not observing the precautions necessary and usual in the work in which he was engaged. The answer also alleges that any defects that existed in the drawheads or apparatus for coupling the cars were open, plain, and visible defects, and that the plaintiff 'was negligent, and that such negligence contributed to and was the cause of his injuries. At the close of the plaintiff’s evidence the defendant moved for a nonsuit on the ground that the plaintiff had failed to show negligence on the part of the defendant contributing to the accident, and also upon the ground that the plaintiff had failed to show a lack of contributory negligence, and also upon the ground that whatever danger there was from the condition of the car he assumed as one of the risks of his employment. The motion was denied, and the defendant took an exception. At the close of the whole evidence the motion for a non-suit was renewed, upon the same grounds as before mentioned, and was denied, and the defendant took an exception.
    Harris & Harris, for appellant; Rich & Aiken, for respondent.
   HARDIN, P. J.

-—Plaintiff attempted to couple car No. 7,609 of the Pittsburgh, Ft. Wayne & Chicago Company with car No. 5,388 of the Syracuse, Binghamton A New York Company. Before the evidence closed it appeared that car No. 5,388 was in a proper condition, and in repon se to a request of the defendant the, court charged “ that the defendant is not chargeable with negligence or responsibility in this case, because of any defect in the car 5,388, the Binghamton car.” When that request was made the plaintiff assented to it, and the court thereupon added: “ There is no claim on the part of the plaintiff that there was an injury caused by any defect in that car.” The plaintiff’s sole reliance, therefore, before the jury, was upon the alleged defect as to car 7,609. In response to a request made by the defendant’s counsel, the court charged that the jury must find, before the plaintiff can recover, that the plaintiff’s hand was caught solely because the buffer "was in the position in which it was, and must further find that his hand would not have been caught had the buffer been in its normal position.” It appeared that the bumpers on car No. 7,609 were 12 inches long and 8 inches up and down. Some evidence, however, was given upon the trial indicating a lesser size of the bumpers. Evidence was given tending to show that the bumper on car No. 7,609 was twisted and hanging several inches; and it is insisted on behalf of the plaintiff that there is no evidence to indicate that any other bumper’ is put upon a car not parallel "with the sill, and that the urakeman was accustomed to bumpers thus placed, varying in size. It is also insisted in behalf of the plaintiff that, as he had coupled the other end of'car No. 7,609, he had a right to expect the same kind of bumper at the end Avhere he received the injuries, and that the evidence indicated that it was necessary to guide the link with his hand, and that the bumper of No. 7,609 was in an improper condition, and that if it had not been twisted there would have been a space of some four inches wide for his hand.

According to the testimony of the plaintiff he placed his left hand on the southeast corner of No. 7,609, and with his other hand reached over to put the pin into the hole of the drawbar, having adjusted the pin in the top of the hole so that it leaned back and was in a proper position to receive the link of- No. 5,388 as it should enter the slit in the drawbar. He tm-ned and placed his right hand on the southwest corner of No. 5,388, and, taking the link which was in the drawbar of that car in his left hand, guided it into the slit of the drawbar of No. 7,609, watching his hand, and watching the approaching draw-bar, so as to properly make the coupling, and, after he had so guided the link, he let go of it, and undertook to remove his left hand, but the deadblocks came together, and his hand was caught between them. After the accident he discovered •that the deadblocks, or bumper, on the east end of the car No. 7.609 was out of position,—that the same was not lengthwise of the sill, but it was in a diamond shape; so that one of its corners pointed towards 'the track. He also testified that the bolt which ran through the deadblock on the end of the sill was a little bent, and that the deadblock projected, out four inches, so that it hung down four or five inches closer to the other bumper on the other car. He also testified that he did not see this deadblock until his hand was caught. He further testified that he did not see the drawhead of No. 7.609 until it was about a foot and a half from his hand. The witness Lester testifies somewhat differently in respect to the circumstances attending the accident, and he says that the cars came back slowly, and the twisted deadblock was plain to be seen. There was some evidence given tending to show that the deadblock had been in a diamond shape for nine days preceding the accident. There was an end sill or heavy timber running across the end of the car, projecting beyond the face of the car about 10 inches. Hnder this end sill was the draw-bar, which projected from beneath the body of the car, and parallel with the track. To the end of the sill, on each side of the drawbar, are the deadblocks or- bumpers. They are not uniform in size. The witness Hartigan, who was a draughtsman, and who saw car No. 7,609, and was called in behalf of the defendant, gave a description of the structure of the car, and he said that the deadblock is even with the drawbar, and he added:

“ The inside edge of the deadblock on 7,609 is even with the outer edge of the drawbar. The distance from the bottom of the deadblock to the bottom of the sill, when the bottom of the deadblock is parallel with the track, is 2-J- inches. When the deadblock is turned in diamond shape, so that the point is nearest the track, the lower part of it is just at the bottom of the sill. It does not project below the bottom of the sill. The face of the deadblock is 12 inches, measuring parallel with the end sill. At right angles with that it is 7j- inches. The dead-block on 7,609 projects beyond the end sill 5|- inches. The distance from the bottom of the end sill to the top of the rail is Sé§ inches. The center of the drawbar is i inches below the bottom of the end sill, and the bottom would be .8 inches below. * * * The drawbar is entirely under the body of the car, and below the end sill, excepting thefface. The face projects above the bottom of the end sill about 1 inch.” .

It "was claimed by the plaintiff that the deadblock in question hung out, and he testified that the bolt which held it to the end sill was slightly bent, and that it stuck out about 1 inches, and that, as a consequence, the effect of that was to bring it that much closer to the other car. The witness Ilosboth stated that it hung out an inch and a half.

It is apparent from the evidence that deadblocks vary in size and in thickness. An examination of' the evidence does not leave the impression upon our minds that it warranted the jury in finding that the plaintiff’s hand was caught solely because the buffer was in the position in which it was,” and that his hand “ would not have been caught had the buffer been in its normal position.” Our attention is called to Goodrich v. Railroad Co., 116 N0. Y. 898 ; 26 S. R. 767. We think the case differs quite essentially from the one in hand. In that case the evidence was very clear that, if the bumper had been in order, the accident would not have happened, and that the defective bumper was the proximate cause of the accident. In that case the bumper of the moving car was defective, and hung lower than it should have done, and it passed under the bumper of the stationary car, and permitted the deadwoods to come together ; and upon that state of facts it was said that the defect in the bumper was the proximate cause of the accident. “ The immediate effect was to permit the deadwoods of the two cars to come together, and the plaintiff was, from that cause, exposed to a danger not within the ordinary risks of his employment.” In that case it appeared very clearly that “ the bumper of the moving car passed under the bumper of the stationary car, and, in attempting to withdraw his hand, it was caught between the deadwoods and severely crushed.” The bumper of the moving car hung so much lower than the one on the stationary car, and lower than it was intended to hang, for the reason that the staple or strap that surrounded it, in which it played, was broken on one side.

In referring to the Goodrich Case in Arnold v. Canal Co., 125 N. Y. 17, 31 S. R. 372, Judge Finch says:

In that case the cars were being coupled for the purpose of proceeding on their journey. The plaintiff was required, in the nighttime, and with the aid of a lantern, to make the coupling, and found a broken drawhead, in seeking to use which his arm was crushed between the deadwoods.”

We are of the opinion that the evidence did not clearly indicate that. the defects complained of were the proximate cause of the injuries received by the plaintiff. Upon that subject the evidence should be clear and persuasive, so that the .jury should not be allowed or required to speculate as to the proximate cause of the injuries complained of. The conclusion already reached renders it unnecessary to consider sonic other grounds urged upon us in behalf of the appellant.

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

All concur.


author: WILLIAMS, J.

text:
    People ex rel. Brady v. O’Brien, et al.

    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    1. Officers—Protection of veterans—Notice of privilege.
    Knowledge of a municipal board that a person dismissed by it from office was entitled to the protection of the veteran act (Laws 1893, c. 577), is conclusively shown by a recital in the. dismissal that he had “ been duly cited, in accordance with the provision of ” said act.
    3. Same—Confidential relations.
    An appointee under a city government does not hold “ a confidential relation to the appointing officer,” so as to except him from the-protection of the veteran act (Laws 1893, c. 577), merely because he is intrusted with the collection of money.
    Certiorari by Thomas Brady to review the action of Edward C. O’Brien and others, as dock commissioners of the city of Hew York, in dismissing the relator from the position of dock master.
    Fred’k B. House and Emanuel M. Friend, for relator; Theo. Connoly and Terrence Farley, for respondents.
   WILLIAMS, J.

—The relator was in fact a veteran sailor, and was entitled to protection under the “Veteran Act,” so called, the latest amendment to which is chapter 577, Laws. 1892. Various questions are raised in behalf of the respondents upon this nearing as to the relator’s right to such protection. It is said that it does not appear that the fact that, the relator was a veteran sailor was brought to the attention of the respondents before the dismissal. This claim is met and disposed of by the language used in the dismissal itself: “ Whereas, Thomas Brady, dock master, having been duly cited, in accordance with the provision of chapter 577 of the Laws of 1892, to appear before the board this day, and show cause why he should not be removed for inefficiency and neglect of duty,” etc. Certainly, if the respondents cited the relator to the hearing in pursuance of the veteran act, we may assume they knew he was a veteran, and regarded him as entitled to protection under the act, to a hearing and cause shown, before he could be dismissed. It is said that it does not appear that the relator was holding the position of dock master by appointment, or was receiving a salary from the city and county of Hew York, or that he was appointed for an indefinite time. Ho such questions were suggested at the hearing or before the dismissal, and it is rather late to argue them now. We may assume these facts suggested did exist, and, if any objection had been raised to a hearing based upon such suggestions, the relator would have supplied the necessary proofs. The respondents were well aware of the manner in which the relator came into the position, for what time his appointment was made, and how his services were-compensated, whether by salary or otherwise. They assumed lie was within the terms of the statute, and, pursuant to its provisions, cited him to a hearing, and a hearing was had, resulting in his dismissal. The respondents must, therefore, be held concluded from raising these questions upon this hearing.

And finally it is said that the relator was not within the provisions of the statute, nor entitled to its protection because he was a person holding a confidential relation to the respondents, who appointed him. The return states that he held a confidential "relation to the respondents in that in his capacity as dock master he was intrusted with the collection of various sums of money. This suggestion appears to have been an afterthought with the respondents. If, at the time of the citation, hearing, and dismissal, they had regarded their relations with the relator as confidential, within the provisions of the statute, they would not have taken the trouble to cite him, and give him a hearing, in pursuance of the statute, before they dismissed him. The return does not state in general, unqualified terms that the relations between the parties were confidential, but specifies to what extent the confidence existed. The facts are thus stated from which the conclusion that the relations were confidential cannot properly be drawn. We are not, therefore, concluded by the language of the return from holding, as we must do, that the relation of the relator to the respondents was not a confidential one within the intent of the statute. The mere fact that in his capacity as doclcmaster the relator was intrusted with the collection of various sums of money did not constitute the relation of confidence intended by the legislature in the passage of this statute. The term evidently referred to intimate personal relations between the parties, and not to a mere fiduciary relation created solely by the relator’s being intrusted, by virtue of his position, with the collection of money. We conclude, therefore, that the relator was within the provision of the veteran act, and entitled to the protection provided thereby. He was entitled to a hearing, and to have cause shown upon such hearing, before he could be legally dismissed from office. He did not have such a hearing as he was entitled to under the statute. He was denied the right to the assistance of legal counsel, to which he was concededly entitled. The respondent’s counsel did not 'deny, but on the argument admitted, that the relator was entitled to the aid of counsel; and, if he was entitled to protection of the veteran act, it was error to refuse him this right. This was an error for which the determination of the respondents must be annulled. It may be said further, without a full discussion of the question, that the proofs given on the hearing entirely fail to establish the charge of inefficiency and neglect of duty for which the relator was dismissed, bío cause for his dismissal, was shown upon the hearing, and for this reason the dismissal was improper and should be annulled. There was no-claim made on the hearing that he had misappropriated any money. The transaction as to the check received by the relator was at. most a formal error, not involving intentional wrong, and grew out of the form in which the check was drawn, which was not usual, but an exceptional case, and was no cause for the dismissal of the relator.”

Our conclusion is that the determination of the respondents should be annulled, and the relator restored to the position from which he was dismissed, with costs.

All concur.


author: BETTS, S.

text:
    In the Matter of the Petition of Adam Slater et al., Admrs. to sell Real Estate.
    (Surrogate’s Court, Ulster County.
    June, 1893.)
    1. Executors and Adminstrators—Sale or land to pay debts—
    Jurisdictional requirements.
    The requirements, in a proceeding to sell a decedent’s land to pay debts, that the petition shall state as nearly as can be ascertained the names of decedent’s heirs, and whether or not the land is occupied, and that the citation must be directed generally to all of decedent’s creditors, unless a notice requiring creditors to present their claim has been published, and the time for presentation thereof has elapsed (Code Civ. Proc. §§ 2752, 2754), are jurisdictional.
    2. Same—Objections by purchaser.
    The purchaser of land sold to pay the deceased owner’s debts may apply to the surrogate’s court to be relieved from his purchase oil the ground that the jurisdictional requisites of the statute were not complied with in the proceeding to obtain leave to sell.
    Petition by Adam Slater and Charles T. Coutant, as administrators, for leave to mortgage, sell, or lease the real estate of Hubert Slater, deceased. Leave was granted to sell. A sale at public auction was had, and a portion of the property was struck off to II. 0. Iligginson, and the balance to George E. Yan Wagonen. The sale to Iligginson was afterwards set ■aside, there being a misunderstanding as to the amount of his hid, and the property was sold to one Schoonmaker. Schoonmaker asks to be relieved from "his purchase, and to have the sale canceled.
    George Van Etten, for administrators; John F. Cloonan, for petitioner.
   BETTS, S.

—Hubert Slater died in this county on the 2d day of July, 1892, intestate. On the 9th day of July, 1892, a verified petition was filed by Adam Slater, asking for the appointment of himself and Charles T. Coutant as administrators of the estate of the said Hubert Slater. The petition recited that said Hubert Slater left kindred entitled to his estate, whose names, relationship, ages, if under 21 years, and places of residence, are as follows: “ Adam Slater, oldest brother, Ulster Park, 1N. Y. Jane E. Whittaker, sister, Woodstock, N. Y. John L. Slater, youngest brother, residence unknown (supposedto be-in some Western state). Eliza Slater, Walter B. Slater, and William Slater, minors, niece and nephews of deceased, children of Walter Slater, a deceased brother of the intestate, residing in the town of Esopus.” On the same day letters of administration were issued to the said Adam Slater and Charles T. Coutant by this court. On the 18th day of July, 1892, a petition to advertise for claims against the estate of the intestate was duly filed in this court, and an order wa.s entered directing the publication of the usual notice in the Kingston Weekly Freeman and Journal, claims to be presented on or before the 21st of January, 1893. An inventory in this estate was filed September 16, 1892, showing the amount of personal property to the sum of $790.75. On the 24th day of October, 1892, a petition was filed in this court, verified by Adam Slater and Charles T. Coutant on October 10, 1892, asking leave to mortgage, lease, or sell at public or private sale the real estate of the deceased for the payment of his debts. Such proceedings were subsequently had in this court that a sale of the real estate was had at public auction, and the same was struck off by the attorney for the administrators to one H. C. Higginson, of a portion of the real estate, and to one George E. Yan-Wagonen, of another parcel of the real estate of deceased. • A misunderstanding having arisen between the administrators and their attorney and the purchaser, Higginson, as to the amount of Higginson’s bid for a parcel of the real estate which he had purchased at this sale, npon the application of the administrators and their attorney and the creditors of intestate, who were represented at the hearing, an order was entered by this court setting aside the sale to Jligginson, and a private sale of that portion thereof that had been sold to Higginson was ordered to be made to one Luther Sehoonmaker, whose bid was regarded of greater advantage to the estate of deceased than that of Higginson. It was claimed by the administrators and those of the creditors represented, and not denied by Higginson, that the bid of Sehoonmaker was about $400 higher than that of Higginson. A contract was entered into between Luther Sehoonmaker and the administrators, and approved by this court. This proceeding is now brought by Luther Sehoonmaker to be relieved from this contract of sale, and to have the same canceled and .annulled. The application is made on a verified petition filed in this office on the 1st day of June, 1893. The administrators waived the issue and service of citation upon them, and consented to the immediate submission of the question to the .surrogate. Luther Sehoonmaker asked to be relieved from the -contract for the following reasons, among others: First. That the petition for letters of administration, duly verified by Adam Slater, filed in the surrogate’s office July 9,1892, shows that Eliza Slater, Walter B. Slater, minors, children of Walter Slater, deceased, who was a brother of intestate, are heirs at law of said Hubert Slater, .deceased, that said minors are not made parties to this proceeding to sell the real estate of said Hubert Slater for the payment of his debts, that their names do not appear in the petition presented to the surrogate, and that no citation was issued' to or served on them. Second. The petition shows that the notice to creditors was running at the date of filing the petition, October 24, 1892, and the notice to pi’esent claims would not expire until January 21,. 1893, and that said citation to show cause was not issued to or directed to the creditors of Hubert Slater, deceased, as a class, as required by section 2754 of the Code. Third. That the said citation was not published as required by section 2523 of the Code. Fourth. That the said petition contains no allegation as to whether the real estate was occupied or not. These objections will be briefly considered in the order in which they have been presented.

As to the first objection of Luther Schoonmaker. The original petition for letters of administration filed in this, court was the petition from which the surrogate obtained his. authority or jurisdiction for the appointment of administrators. The naming of the proper parties was as much a jurisdictional matter as was the death of the deceased, his dying intestate, or the value of his property, or any of the other matters that are required to be stated upon application for letters of administration. Section 2752 of the Code of Civil Procedure, in regard to the distribution of real property of a deceased person for the payment of his debts, provides as follows :

“ The petition must set forth the'following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them: (1) The unpaid debts of the decedent, and the name of each creditor or person claiming to be a creditor; * * * and the amount of the unpaid funeral expenses of the decedent, if any, and the name of any person to whom any sum is due by reason thereof. (2) A general description of all the decedent’s, real property, and interest in real property, within the state,, which may be" disposed of as prescribed in this title; a statement of the value of each distinct parcel, whether it is improved or not, whether it is occupied or not, and, if occupied,, the name of each occupant. * *' * Where the petition describes an interest in real property, specified in section 2749 of' this act, the value of the interest must be stated, and also the value of, and the other particulars, specified in this section, relating to the real property to which the interest attaches. (3) The names of the husbancl or xvife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them, or either of them, stating who, if any, are infants ; the age of each infant, and the name of his general guardian, if any; and also, if the petition is presented by a creditor, the name of each executor or administrator. (4) * * * ’*

It will be seen the third subdivision of this section, requiring that the names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them;, or either of them, stating who, if any, are infants, the age of each infant, and the name of his general guardian, if any, must be set forth in the petition, has not been complied with if the original petition for letters of administration in this estate was correct. There has been no answer filed by the administrators to the petition of Luther Schoonmaker, none of the objections to the proceedings made by him have been .controverted or denied, or in any way or manner explained. It is a fact that the names of these infants are in the original petition. It is also a fact that they were not named as the heirs at law in the petition on the proceeding to sell real estate, nor represented in any way in said proceedings. The insertion of the names of the heirs at law and their ages is jurisdictional. It is so held in Redf. Prac. Sur. (4th ed.)674; Dennis v. Jones, 1 Dem. Sur. 80; Mead v. Sherwood, 4 Redf. Sur. 352; Ackley v. Dygert, 33 Barb. 176; In re John’s Estate (Sur.), 18 N. Y. Supp. 172; In re Kelly’s Estate, 1 Abb. N. C. 102 ; Stilwell v. Swarthout, 81 BT. Y. 109 ; Jenkins v. Young, 35 Hun, 569. I can find no explanation for the absence of these infants from the petition in any of the proceedings on file in this court. They were not cited nor represented. The testimony given does not disclose what became of them. The petition for the sale of the real estate was made by the same man who about three months before swore to the existence of these heirs at law of Hubert Slater. If they are all dead, their absence should have been explained and accounted for, and their heirs at law made jiarties to this proceeding. As no explanation was given in the proceeding to sell the real estate, and no answer given by the administrators to the petition of Luther Schoonmaker, it must be concluded that they should have been made parties to this proceeding. If heirs at law of Hubert Slater, their- absence is jurisdictional, and a sale under a decree subsequently made, founded upon such a petition, ■would be defective. Ileirs at law cannot be divested of their title by being overlooked or ignored ; they should have their “ day in court.”

As to the second objection of Luther Schoonmaker, section 2754 of the Code pro vicies as follows :

“ * * Hnless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and. the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed, generally to all other creditors of the decedent, as well as to the creditors named.”

The petition herein shows that the notice to creditors was running at the date of the filing of the petitions, October 24, 1892, and the notice would not, in fact, expire until January 21, 1893. The citation to show cause was not issued to the creditors of the deceased as a class, as required by this section of the Code. This was held to be a good objection to the proceeding in the matter of the estate of Elizabeth Auch, deceased,, the action being entitled “ Kammerrer v. .Ziegler,” reported in 1 Dem. Sur. 177, decided in New York surrogate’s court in 1883. The court there held that it was one of “ the objects of the statute to make provision for giving notice in proceedings like this to persons who may perhaps be creditors, though not known to be such by the petitioner.” And unless this notice has been published, and the time to present claims has expired, creditors, whether known to exist or not, must be cited as a-class, and such citation must be published as required by section 2523.

It was claimed by the learned counsel for the administrators that the creditors could not oppose the administrators in- a proceeding of this kind, and that, therefore, the omission to publish this notice might have been cured by the voluntary appearance of the creditors. In opposition to this it has been, decided in the matter of the estate of J ohn F. Collins, an action entitled “ Dennis v. Jones,” 1 Dem. Sur. 80, that a creditor could successfully oppose the application of the administrators in a proceeding of this kind, the court holding :

“ This petition is defective on account of its- unexplained omission to make certain allegations required by law. It does not, for example, disclose the age of the infant child of the testator, or whether the property which is the subject of the application is or is not improved, or whether it is or is not occupied. While it specifies certain debts, and gives the names of certain creditors, it neglects to state whether the debts which are enumerated constitute all the indebtedness of the deceased, and whether the creditors mentioned include all his creditors. Section 2732 of the Code declares that in a proceeding such as this the petition must set forth, among other things, the matters here omitted. Section 2753 provides that,, if any of these matters cannot, upon diligent inquiry, be ascertained by the petitioner, that fact must be shown to the satisfaction of the surrogate. It does not appear that the particulars wherein this petition is defective might not have been readily ascertained. Indeed, they are fully disclosed in the order of reference which, by one of its provisions, attempts to supply the omissions of the petitioner. This attempt, however, is ineffectual, as the omissions constitute a jurisdictional defect.”

- And see cases there cited ; the court further saying:

It goes without saying that, if the surrogate acquired no jurisdiction in the first instance, the provision' in the order of reference for amending the petition by the insertion of the omitted matters is wholly ineffectual to cure its deficiencies.”

Now, as to the third objection of the petitioner Schoonmaker, section 2523 of the Code provides as follows :

“ The surrogate may also make an order directing the service of a citation, without the state, or by publication in either of the following cases : * * * (2) Upon one or more unknown creditors, next of kin, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general description as prescribed in this article.”

This objection was also -sustained in Kammerrer v. Ziegler, 1 Dem. Sur. 177.

Now, as to the fourth objection of the petitioner Schoonmalcer. The petition contains no allegation as to whether the real estate of deceased was occupied or not. This is plainly one of the jurisdictional requisites, as shown by subdivision 2 of section 2752 of the Code of Civil Procedure, hereinbefore referred to. The reason and necessity for the rule can be plainly seen in a proceeding of this kind. The sale and the giving of a deed should be followed by possession in a purchaser. An occupant might easily be found in possession claiming title under the deceased, or under one of the numerous heirs at law of the deceased, and this court certainly would not obtain jurisdiction over the person of an occupant who had not been cited in this proceeding. This has been held in numerous cases to be jurisdictional.

There are various other objections which are raised by the learned counsel of the petitioner, both to the petition' and to the subsequent proceedings that have been had in this matter. Some of these objections may have been cured, and others not, by the evidence that has been taken, and the proceedings that have been liad. It seems, however, that the four objections chiefly considered all go to the jurisdiction of this court, and that a good title would not be obtained by the purchaser under this sale.

The surrogate has jurisdiction to entertain an applicatibn of the kind made by tfiis purchaser, and it is so decided in Re Lynch, 67 How. Prac. 436, and in Re John’s Estate (Surr.), 18 N. Y. Supp. 172. And in Re Dolan, 88 N. Y. 309, although decided adversely to the petitioner, yet the court decided that he had the right to make the application by entertaining the appeal. In that case the court considered the objections of the petitioner, and overruled each of them separately.

There has been so much litigation in this proceeding, and the proceeding has been so long, that it is to be regretted that the sale could not be followed by a valid deed which would entitle the purchaser to possession.

The petitioner in this case asks for costs. I do not feel disposed to grant costs. The petition of Luther Schoonmaker, asking to be relieved from his contract of sale, and to have the same canceled and annulled, is granted, and an order may be entered to that effect, without costs to either party.

Ordered accordingly.