text:
    Peter Higgins, App’lt, v. The Western Union Telegraph Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Master and servant—Relation.
    A person who selects another, reposes confidence in him, puts him in ' charge of an elevator, may remove him for misconduct, and whose orders the latter is ¡bound to receive and obey, stands in the relation of master to him.
    A Same—Liability.
    If a servant, within the scope of the confidence reposed in him, does, through his negligence, any damage to a stranger, the master must answer for his neglect.
    3. Same—Go-servant.
    The doctrine as to negligence by a fellow servant does not apply, where there is no common employment and the injured person is engaged in a separate service by a different master.
    4. Same—Privity.
    In such case, no privity between the master and the injured party is • necessary in order to enable the latter to maintain an action.
    5. Trial—Question op pact.
    Where different inferences are to be drawn from the facts, which leave in doubt the question as to whether the negligent party is the servant of the owner or the contractor at the time of the accident, it should be submitted to the jury.
    Application by plaintiff for a new trial upon exceptions ordered to be heard in the first instance at general term, in a case where a verdict was directed in favor of the defendant.

      Truax & Crandall, for motion; J. F. Miller, opposed.
   McAdam, J.

The plaintiff was in the employ of James B. Smith, who contracted with the defendant to restore the upper portion of its building, at No. 195 Broadway, this city, which had been destroyed by fire. Smith did the carpenter, mason and plumbing work on the upper stories, employing the workmen and furnishing the materials. He also put in the elevators, which had been contracted for the building by the Crane Elevator Company.

The plaintiff, an employe of Smith, was pointing up the elevator shaft when the accident occurred. He was standing on the top of the elevator, using it as a scaffold. While doing work, Smith frequently called .on the defendant to furnish a man to run the elevator, and the defendant generally furnished one on application. On the occasion in question the foreman of Mr. Smith called upon the defendant, and Mr. Clark, its chief engineer, delegated one Algar as conductor, to take charge of the elevator and move it up or down as the work progressed. It required skill to run the elevator, and the defendant presumably selected Algar on account of his supposed competency. No one interfered with his management of the elevator, though he was subject to the orders of Smith and the plaintiff as to when he should raise or lower the machine; but in no other regard was he controlled by them.

It certainly cannot be truly said that a passenger directing an elevator conductor to stop at a particular floor or part of a building, assumes any control over the elevator, or in any manner or to any extent makes the conductor his servant; and this, in substance, may be likened to the directions given by the plaintiff; they were of that tenor, and no other.

To hold the elevator steady it was necessary to bring the lever to the center and put it in the catch. To move the elevator up or down, the lever was moved one way or the other, according to the direction which the elevator was required to go. The conductor did not on this occasion put the lever in the catch. He was sitting in his chair, reading a newspaper, and had not his hand upon the lever. The elevator naturally started up; plaintiff fell over, with his head under the door, receiving the serious injuries complained of; and the action is brought to recover compensation for the wrong.

The defendant had nothing to do with the work which plaintiff was engaged upon, further than being interested in its speedy completion. Nor was the defendant under any contractual obligation to furnish a person to manage or run the elevator; yet it chose (as it lawfully might) to do so.

The theory upon which the learned judge below directed a verdict in favor of the defendant was, that Algar at the time the plaintiff was injured was not acting as the servant of the defendant, either in its business or under its direction or control, but was the servant of Smith, the contractor. If this be the only deduction to be drawn from the facts, the direction was certainly right as one of law. Do the facts necessarily lead to the conclusion stated? In passing, it may be said that the special rule relating to independent contractors has no application to the case, as developed by the evidence, which requires the ground of liability to be placed upon a different principle. It may be assumed that the only theory upon which the defendant can be held answerable for Algar’s negligence, is on the principle of respondeat superior; and in order to make that applicable it must affirmatively appear that he was at the time acting as its servant, doing its business, subject to its orders and directions.

The relation of master and servant exists where one is bound to render the service, and the other to pay the stipulated consideration. Did Algar at the time bear this relation to the defendant? or was he pro hac vice the servant of Smith, the contractor? The questions put must be subjected to the tests by which such relation is determined.

First. It has been judicially said, that “he who had selected him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey, stood in the relation of master to the person doing the act complained of.” Quarman v. Burnett, 2 Mee. & W., 500; Blake v. Ferris, 5 N. Y. 48; Michael v. Stanton, 3 Hun, 462; Gerlach v. Edelmeyer, 47 N. Y. Supr. Ct. R, 292; aff’d, 88 N. Y. 645; Annett v. Foster, 1 Daly, at p. 507; Butler v. Townsend, 126 N. Y. 105 ; 36 St. Rep. 508; Broom’s Legal Maxims, 669; Story on Agency, § 453b.

Second. Another inquiry is, whether at the time the person who did the wrong was in charge of the defendant’s property by its assent and authority, and whether the injury was done while rendering obedience to his employer’s will. Cosgrove v. Ogden, 49 N. Y. 255.

Third. The master has a general authority and personal control over the one who stands to him in the relation of servant; in fact, he has a property in the service of those whom he thus employs, acquired by the contract of hiring. The master may maintain an action for loss of service against one who wrongfully imprisons the person employed by him. Woodward v. Washburn, 3 Den., 369 ; Lawyer v. Fritcher, 130 N. Y. 239 ; 41 St. Rep. 268, or who wrongfully entices the servant away. Wood on M. & S., §§ 230,' 239. If Algar had been imprisoned or enticed while in charge of the elevator, the right of action for the wrong would in either case have belonged to the defendant, and not to Smith. Tested in this manner it would seem reasonably clear that Algar was at the time, the servant of the defendant, and that it was his master, and not Smith. Smith did not employ him or pay him; he had no power to control him or discharge him, was not answerable for his skill as an elevator conductor, nor responsible for his incompetency, because he did not select him, and, for all that appears, never saw him. If the defendant had contracted the services of Algar as an elevator conductor to Smith for a compensation, it would have been liable for his competency and the proper discharge of his duties, and it can make no substantial difference in this case that his aid was given by the defendant gratuitously.

It has been held that if A., a livery stable keeper, furnishes a horse and driver to B., a customer, to be used in driving B. about in his own carriage, the driver while so employed will be deemed the servant of A. and not of B., Samuel v. Wright, 5 Esp. 263, and it makes no difference that the arrangement is a continuing one ; that the same driver is always sent; that he wears a livery furnished by B., designed to make the public believe he is B’s coachman; and that he receives gratuities from B. Quarman v. Burnett, 6 Mee. & W., 499. The person selecting, retaining and dominating the conduct of the servant being, as a rule, regarded in law the real, true and responsible master, as to third persons injured by the servant’s misconduct. It is seldom, if ever, otherwise.

A. hired a team, wagon and teamster of B.; while used in A.’s business, the harness being out of order, it ran against C.’s horse and killed it. C. sued B for damages. Held, that the teamster was the servant of B., the bailor, and not of the bailee, and that B. was answerable. Crockett v. Calvert, 8 Ind. 127; Quinn v. Company, 46 Fed. Rep. 506. The same rule would apply to a man who hires a carriage and horses to travel on a journey; the carriage and horses are employed for the benefit or pleasure of the traveler, and yet the law has never considered the traveler liable, but the owner only for the negligence of the driver. Story’s Agency, § 453a; Richardson v. Van Ness, 53 Hun, 267; 25 St. Rep. 60; 6 N. Y. Supp. 618.

In Jones v. The Mayor, etc., 14 Q. B. Div. 890, one Dean had contracted with the defendants to furnith a horse and driver to draw a watering cart belonging to the defendants, under the supervision of inspectors employed by defendants, whose duty it was to direct the drivers of the watering carts when and where to water the streets. As their order was necessary for this purpose, the inspectors had authority and control over the drivers of the carts. The plaintiff’s carriage was injured through the negligence of the driver furnished by Dean. Held, that the plaintiff could not recover of the defendants.

In Weyant v. N. V. & Harlem R. R. Co., 3 Duer, 360, it appeared that the plaintiff had been thrown out of his wagon by a collision with a railroad car, the property of the N. Y. & Hew Haven R. R. Co., but which was drawn by horses owned by the N. Y. & Harlem R. R. Co., and was driven by a driver in their employ. The court held that as “the Harlem Bailroad Company was the owner of the horses which drew the car, and the driver was in their employ, paid by them, bound to receive and obey their orders, and liable to be dismissed by them at pleasure,” that company was liable. See also Schular v. Hudson River R. R. Co., 38 Barb. 653; Boniface v. Relyea, 5 Abb. Pr. N. S. 259; 6 Robt. 397; 36 How. Pr. 457.

In Pack v. The Mayor, etc., 8 N. Y. 222, the contractor engaged to conform his work to such further directions as might be given by the defendants. The court held that this clause did not change the relations of the parties. It gave the corporation power to direct as to the results of the work; but without control over the contractor or his workmen, as to the manner of performing it, which control alone furnishes ground for holding the master liable for the acts of the servant or agent.

In Holmes v. Onion, 2 C. B., N. S., 790; 26 L. J., P. C., 261, the defendant engaged the services of S., a thatcher, for a certain period at weekly wages, for the purpose of hiring him out to do thatching work for his profit. S. having, during the period, thatcher some stalks of wheat for the plaintiff, for which work the defendant claimed and received paymentHeld, that the defendant was responsible to the plaintiff for the injury to the wheat, occasioned by the negligent manner in which S. did the work.

A case calling for the exposition of the general principles applicable, is that of Sprowl v. Hemmingway, 14 Pick., 1, in which it appeared that a brig, which was towed at the stern of a steamboat, employed in the business of towing vessels in the river Mississippi, below Kew Orleans, was, through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had nó control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig for the damages sustained by the collision; and the question was, whether the owners of the brig were liable therefor. It was held that they were not, upon the ground, that the máster and crew of the steamboat were not the servants of the owner of the brig, were not. appointed by him, did not receive their wages or salaries from him, had on power to control them in their movements, and bad no contract with the master or owner of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamboat, derived from the public use and employment thereof by the owners. See also Fenton v. Steam Packet Co., 8 Adol. & E., 835 ; Dalyell v. Tyler, 23 L. J., Q. B., 52. It was said that the case most nearly resembling the one ,cited, is that of a vessel chartered, where, for the time being, the whole use and benefit of the ship is transferred to the charterers, but the officers are appointed and the crew engaged and subsisted, by the owners; in which case it was held, that the owners, and not the charterers, are responsible to third persons-for any damage occasioned by the negligence of the officers and crew. Fletcher v. Braddick, 5 Bos. & Pull., 182.

So through the books will be found reiterated, as the doctrine-on which the liability is bottomed, that the person selecting the servant and reposing confidence by putting him in command of his vessel, carriage or elevator, is answerable to third persons for all injuries received by them through the carelessness of the agent appointed. It rests also on the power which the master has a right to exercise, and which, for the protection of third persons, he is bound to exercise over the acts of subordinates who stand in his place, representing him in the performance of duties which he has undertaken shall be exercised with care commensurate with the danger.

The plaintiff could not work in the well-hole while Algar was engaged carrying passengers for the defendant, and when the traffic ceased on this particular elevator for the day, the defendant directed Algar to use it to aid the plaintiff in his work,—an undertaking the defendant was -interested in having completed as speedily as possible. In furnishing Algar, the defendant did not sever its relation with him, for he was directed to go by force of the authority it conferred ; it did not transfer him to a new master who was thereafter to direct him in the manner of running the machine , so as to divest it of liability for its mismanagement; it. parted with no control over him ; he was merely to assist the plaintiff up and down as the exigencies of the.work required; and, while in control, managing the machine, Algar represented the defendant, his employer and master whom he was serving, and no one else. If Smith had for his own purpose borrowed the use of the elevator, and had run it with a conductor of his own selection, a different question would have been presented. Herlihy v. Smith, 116 Mass. 265, and so, if Algar had for Smith’s accommodation, and without the direction of the defendant or contrary to its instructions, operated the machine. Sheridan v. Charlick 4 Daly, 338; Wyllie v. Palmer, 137 N. Y. 248 ; 50 St. Rep. 706. But neither of these contingencies arose. Indeed, Algar was in the act of carrying out his master’s orders when the accident occurred, not only within the scope of his employment, but in the specific performance of it.

The application of the rule respondeat superior in this as in other cases, becomes simple enough after it has once been determined whose servant did the damage. The injuries received by the plaintiff were the sole result of mismanaging the elevator, by omitting to put the lever in the catch, — a clear act of negligent omission of the servant, not caused or aided by anything Smith or the plaintiff said or did or omitted to say or do; and it is impossible, therefore, to impute to either of them the doing or omitting to do anything relating to or connected with the cause of the accident. Algar was in command of the elevator, running it as a captain or a pilot runs a boat, and, like persons thus situated, was not expected to take instructions as to safety, management or control from Smith or any one else. He was placed in command by the orders of the defendant, and it was at liberty to recall him at pleasure, if it felt any insecurity from his control Smith could not have compelled him to remain, if the defendant had seen fit to call him away.

The plaintiff had the right to rely upon Algar’s competency; for he knew that a responsible corporation had selected him, presumably, with care commensurate with the danger; and by such employment it set in motion that which lulled others into a sense of security, and produced the very injury sought to be redressed and defendant took upon itself the risk of all the consequences which followed the wrongful execution of the conductor’s duties. It is elementary, that if a servant within the scope of the confidence reposed in him does any damage to a stranger, the master must, agreeably to the maxim, Qui facit per alium, facit per set answer for this neglect. City of Buffalo v. Holloway, 7 N. Y., at p. 496. Algar had run the same elevator on the very day the plaintiff was injured and also on previous days, carrying passengers for the defendant to different parts of the building; which shows, by inference at least, that the elevator was in the defendant’s possession and control.

To sustain the present judgment would be, in effect, to hold as matter of law, that Algar at the time of tbe accident was the servant of Smith, the contractor, and that the plaintiff must seek his remedy from him. There can be but one responsible superior for the same subordinate at the samé time. Blake v. Ferris and Michael v. Stanton, aupra. If different inferences are to be drawn from the facts that leave in donbt the question as to whether Algar was an employe of the defendant or of Smith at the time, then the trial judge should have submitted it to the jury for their determination. This the plaintiff’s attornev requested the trial judge to do; but the request was denied. We do not say that question ought to have been sent to the jury, for we are of the opinion that the facts stated sufficiently establish as matter of law, that the relation of master and servant existed between Algar and the defendant at the time, and that the responsibility for his acts rested upon it. This being so, it was error to direct a verdict in favor of the defendant.

The case is unaffected by the doctrine applicable to negligence by a fellow workman, for there was no common employment, the plaintiff being engaged in a separate service by a different master. Svenson v. Atlantic Mail Steamship Co., 33 N. Y. Supr. Ct. R., 277; aff’d, 57 N. Y. 108; Abrahams v. Reynolds, 5 Hurl. & N., 143; Story on Agency, §§ 453-459.

No privity between the plaintiff and defendant was necessary in order to enable him to maintain the action. In Coughtry v. The Globe Woolen Co., 56 N. Y. 124, it appeared that O. & M. contracted with defendant to put a cornice on its mill, any scaffolding required for that purpose to be erected free of cost to them. Plaintiff’s intestate, a workman in the employ of 0. & M., while engaged in the work, was killed by.the fall of a scaffold erected by defendant, and on which he was at work. In an action to recover damages plaintiff was non-suited, on the ground that the defendant owed no duty to the deceased, as he was not in its employ. Held, error; and a new trial was awarded. The court said: ■“Being conceded to be its own structure, furnished by it for .use, the duty of due diligence arose, not merely out of the contract to furnish it, but from the fact that the defendant did actually furnish it for the express purpose of enabling and inducing the men who were to do the work to go upon it.”- The principles decided in the case cited are peculiarly applicable here.

The question whether tiñere had been a formal acceptance of the elevator by the defendant from the Crane'Elevator Company, is of no consequence; for that must depend upon the terms of the contract under which it was furnished. As to third persons, however, the defendant became liable for its “management” from the time it assumed control and applied it to the uses and purposes for which it was constructed, there being no allegation or proof of defect in construction.

For these reasons the exceptions must be sustained, and the plaintiff’s motion for a new trial granted, with costs to the plaintiff to abide the event.

Sedgwick, C. J., concurs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Francis Shields, Resp’t, v. Alvin Russell, App’lt.

      (Court of Appeals,

      Filed April 24, 1894.)

    1. Specific performance—Warranty deed.
    Where a wife, to secure a loan to her husband, executed a deed of her land to the defendant, who gave to the husband a lease of such land, with covenant to convey the land to him by a good warranty deed and in fee simple, at any time within two years upon payment of the sum loaned, the defendant will not be compelled, in an action to which the wife is not a party, to convey the land to the husband by deed of general warranty.
    3. Same.
    In such case, he should only be required fb warrant against his own acts.

      3. Same.
    Though such lease contained a provision making it non-assignable without the consent of the defendant, an assignment without consent does not make his right to the property become absolute.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.
    This action was brought by plaintiff as assignee of all the rights of John S. Elliot, under a lease executed to him by defendant, to compel defendant to execute to him a warranty deed of the premises covered by the lease, or to recover $2,955.20 and interest as damages.
    The lease in question was executed under the following circumstances : On February 4, 1891, Eliza H. Elliot, who owned the fee of certain real estate, to secure a loan to her husband of $1,000, executed a deed of said real estate, her husband joining with her, to the defendant; at the same time the defendant gave to John S. Elliott a lease of the same premises for two years, by the terms of which John S. Elliott was to keep the property insured and in repair, to pay to the defendant sixty dollars a year for rent and not to assign the lease. The defendant agreed that upon the payment of said rent, the performing of the other conditions of the lease and the payment to him any time within two years of the sum named, he would execute and deliver to said John S. Elliott, his heirs and assigns, “a good warranty deed and in fee simple” of the premises. Elliott assigned the lease to plaintiff without the defendant’s consent. Plaintiff tendered the money to defendant and demanded a warranty deed, which tender and demand were refused. The judgment required the execution of “a good warranty deed and in fee simple.”
    Further facts are stated in the opinion.

      John P. Kolias, for app’lt; John P. Badger, for resp’t.

       Modifying 49 St. Rep. 134.

   Per Curiam.

We think the" judgment should be modified so as to limit the warranty in the deed directed to be executed by the defendant, to a warranty against his own acts. The redemption lease was a part of the transaction between Mr. and Mrs. Elliott and the defendant. By its terms the defendant agreed in substance to convey the land to John S. Elliott upon his paying to the defendant the sum loaned with interest, at any time within two years after the execution of the lease, by a “good warranty deed and in fee simple." But the deed executed by the wife being in law a mortgage, her title to the land was not divested thereby, and it would be inequitable to compel the defendant, in an action to which the wife is not a party, to convey the land to the husband by deed of general warranty. The substance of tlie agreement between the defendant and John S. Elliott was an undertaking on the part of the defendant to convey his mortgage interest to the husband by deed purporting to convey land on his paying the amount for which he held the land as security. The scope of the warranty to be given should be limited as above stated, and the transaction was, as is found and as is now conceded by both the parties to the action, a loan of one thousand dollars by the defendant to the plaintiff, or to the plaintiff and his wife, upon the security of the wife’s land, and that the deed was in fact a.mortgage. The court ought not to compel the defendant to convey with a warranty broader in scope than the interest which he had, the situation being known to all the parties-to the transaction at the time the agreement was executed. The plaintiff is willing to accept specific performance on the terms'indieated, and the defendant now professes to be willing to perform the agreement if he shall be relieved from the obligation to convey with general warranty. He insisted in his answer and on the-trial that his right to the property had become absolute by reason of the lease having been assigned without his consent, contrary to a covenant therein. But this claim is without foundation as is-satisfactorily shown in the opinions delivered át the special and general terms. It is found that the wife on the trial disclaimed any title to the premises. But her title has never been conveyed by any deed or writing, and such a parol disclaimer, or any circumstances tending to raise an estoppel against her, leaves the matter so uncertain that the defendant ought not to be compelled to convey upon the assumption that her- title has been divested, or upon the ground that an implied power to convey the fee was vested in the defendant under the lease and the deed of the wife, executed contemporaneously therewith.

The judgment should be modified in accordance with this opinion, and as modified affirmed.

The attitude of the defendant in the litigation has been such that we think he should not be relieved from payment of costs, notwithstanding the judgment is modified in his favor. Judgment modified, and as modified affirmed, with costs.

All concur.

Judgment accordingly.


author: O’Brien, J.

text:
    Agnes S. Lyon, an Infant, etc., Resp’t, v. The Manhattan Railway Company, App’lt.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. Statutes—Amendments—Construction.
    In construing amendments to a statute, the original statute with all its amendments must be read together and viewed as one act passed at one time. No part is to be held inoperative, if all can be made to stand and work together.
    2. Deposition—Physical examination.
    The amendment of 1893 to § 873 of the Code does not violate any of the express or implied restraints upon the legislative power to be found in the Federal or State Constitution.
    3. " Same.
    Such amendment does not authorize an order directing a physical examination apart from, and independent of, an examination of plaintiff as a witness before trial.

      Appeal from order of the general term of the court of common pleas of the city and county of Mew York, made March 9, 1894, which reversed an order of special term directing a physical examination of the plaintiff before trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Julien T Davis, for app’lt; Nelson Smith, for resp’fc

       Affirming 58 St. Rep. 50.

   O’Brien, J.

The complaint in this action alleges that in the month of October, 1892, the plaintiff, a young girl then under age, was a passenger upon one of the defendant’s trains, and that she was seriously injured by reason of a collision, such injury affecting the spinal column and whole nervous system. These allegations were put in issue by the answer. The defendant obtained an order from one of the judges of the court in which the action was pending, directing the plaintiff to appear before a referee named in the order, at her residence, at a date designated, and then and there submit to a physical examination in respect to the nature and extent of the injuries claimed, to be conducted by two medical experts named, in the presence of such women as she might desire to have present, but not in the immediate presence of the referee, unless the plaintiff should so elect. The general term has reversed the order, and this appeal brings the questions here for review. The ground upon which the order was reversed is that the defendant was not entitled to an order for such an examination except at the time of granting one for her examination as a witness or a party before the trial, and that a separate physical examination alone is not authorized. On the argument before us in support of this reversal, the learned counsel for the plaintiff does not rest the case wholly upon the reasons given by the general term, but attacks the statute as in conflict with the Federal and State Constitutions. He insists that such conflict arises from the fact that the plaintiff is required, as a condition of prosecuting her action in the courts, to expose her person against her will. That the statute in effect interferes with the sacredness and privacy of her own person, and deprives her of her liberty and natural rights and the equal protection of the laws. The argument, though perhaps novel, and subject to the objection that it seeks to push a principle to extremes, is not without interest on account of the ideas advanced and the manner of their presentation. In the view we take of the questions involved in the appeal, it will not be necessary to follow the discussion. The statute enacts a rule of procedure, the purpose of which is the discovery of the truth in respect of certain allegations which the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a method of aiding the court and jury in the correct determination of an issue of fact raised by the pleadings, and, as it seems to me, does not violate any of the express or implied restraints upon legislative power to be found in the fundamental law. But, in regard to the meaning and construction of the statute, I think the court below was entirely correct. The general purpose of the enactment was to change a rule of the common law which had recently been asserted by the highest court and by this court. The Union Pacific Railway Co. v. Botsford, 141 U. S. 250; McQuigan v. D. L. & W. R. R. Co., 129 N. Y. 50; 41 St. Rep. 382.

It is not necessary in this case to insist that the statute should be subjected to a strict construction, but certainly it ought to receive a construction that would make it fair and reasonable in its operation. By chapter 721 of the Laws of 1893, § 873 of the Code of Civil Procedure was amended by inserting the following provision in the middle of that section:

“ In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper.
“ In every action brought to recover damages for personal injuries, where the defendant shall present to the court' or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made.”

The learned counsel for the plaintiff contends that under the section as now amended, the physical examination is not authorized apart from or independent of the examination before trial, while the learned counsel for the defendant contends that the second clause of the amendment provides for a mere physical examination, distinct and apart from the other words of the amendment, and from the preceding or subsequent sections of the Code. In other words, he separates this clause from the rest of the section and from the other sections relating to examinations of parties, and insists that it contains within itself everything necessary to its execution as an independent enactment. I take it to be a settled rule of statutory construction that an original statute with all its amendments must be read together and viewed as one act passed at the time. Goldman v. Kennedy, 49 Hun, 157 ; 17 St. Rep. 433. No part of the original or the amendment is to be held inoperative if they can all be made to stand and work together. I assume that had § 873 as now amended been originally enacted in its present form, no one would claim that it should then receive the construction now claimed in behalf of the defendant, and yet we must read it and the other sections on the same subject as if they had passed in the present form at the same time.

But the most serious objection to the defendant’s construction is, that under it, it would be utterly impossible to attain the end which the legislature had in view, and it would, in fact, defeat every practical and useful object sought to be accomplished. The section, as amended, provides that the examination shall be had before the judge or a referee, and a referee was actually appointed in the order in this case and the plaintiff directed to appear before him. For what purpose? If the defendant’s construction be correct, he could not administer an oath to any one, or ask a single question, or make any report of the proceeding. He could not even be present at the examination unless the plaintiff required it. The plaintiff might stand mute and no one could compel her to answer a single question put by the medical experts or any one else. The experts are not required to reduce anything to writing or make any report to the court, and no provision is made for a record by any one. All the defendant can get from the proceeding upon this construction is an opportunity to have two physicians inspect the plaintiff’s person as to any external marks or symptoms of injury or disease, for the purpose of enabling them to testify at the trial, it may be years afterwards. The defendant’s counsel cannot even know in advance of the trial wliat testimony the experts can give, whether for or against him, unless, after an appointment by the court, they should volunteer to disclose to him the results of their observation, and this might not be regarded as entirely proper on their part, as they were in some sense officers of the court, or at all events, impartial as between the parties, a character that they should preserve in order to give to their testimony much weight at the trial. So that when the proceedings are finished practically nothing has been accomplished. The parties have not advanced much in the process of discovering where the truth is. They are for all practical purpose just where they started.

Moreover, how is it possible for medical experts to make a physical examination in a case like this, or indeed in most cases, by merely observing the external marks or indications of personal injury or diseases? The term itself implies not only such observation, but an inquiry by means of questions and answers as to the cause, nature, character and extent of the disability. Mere external appearances are, in themselves, of no consequence unless identified and connected with the accident as the cause, and, hence, disclosures such as ordinarily occur between patient and physician must necessarily accompany the inspection of the injured parts. It is clear, I think, that such an examination as the.statute contemplates can never be obtained under the defendant's construction. It must be held that the legislature intended to enact some useful and practical rule in the administration of justice, that would promote the discovery of truth and not to do a vain thing. In order to reach this simple and just result all we need to do is to read the amendment as a part only of the general scheme prescribed by the Code for the examination of parties before trial. In order to give even color to the other view it must be detached from the context and from all its surroundings, and read as if it stood alone, in disregard of settled rules of construction. We must reject provisions of the same section, and other sections on the same subject, of the plainest import, as wholly inapplicable to this particular examination. The statute has in terms provided that the physical examination shall be procured'in the same way and as part of an examination of the party before trial, and in that way only and by conforming to the general provisions of law on the subject can the object and purpose of the amendment ever be attained. This construction gives effect to every word of the section as amended, and is in harmony with the other sections immediately preceding and following it. Then the referee becomes something more than a mere spectator at-an idle ceremony. He may take the plaintiff’s testimony upon the issue and report to the court as upon an examination before trial. He has, of course, power to administer an oath and to authenticate the proceedings, and the plaintiff is bound to appear before him and answer all proper questions with respect to the nature and extent of the injuries, whether framed by the medical experts from their own examination or as a part of it, or by the counsel present. It becomes a fair struggle for truth, and both parties may participate. The record of the examination is placed on file, and both sides know what must be met if it is introduced in evidence, as it may be. The statute upon this construction becomes a valuable accession to the rules for administering justice, and not an instrument to be used by one party to surprise his antagonist at the trial, or, in some cases, possibly himself. That this is the fair and reasonable, and, indeed, the necessary construction of the section as it now stands, I cannot doubt. .Moreover, the other view would, in the end, be most unfortunate for the defendant and parties situated as the defendant is. We know that in actions of this character brought by women against corporations considerations sometimes influence the jury, other than those growing out of the law and the facts applicable to the case. When facts are fotind upon conflicting evidence and damages assessed, the accuracy of the mental process upon which the jury acted cannot ordinarily be reviewed. It is not desirable to increase the chances of injustice by adding new elements that are liable^to be used at the trial against corporations in this class of actions. Mr Justice G-RAT, in the supreme court of the United States in the case of The Union Pacific Railway Co. v. Botsford, supra, remarked that “The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority is an indignity, an assault and a trespass.” This amendment has changed the law, but it is not so certain that it will ever change the general sentiment of mankind which was expressed in that remark. The power conferred by tbe amendment should never be used in such a way as to leave any doubt as to the fairness and good faith of the proceeding, otherwise it may prove to be a sword instead of a shield. It should be a fair and open inquiry after truth, in which both sides are or may be actors. If it is used only for the purpose of enabling the defendant to prepare expert witnesses to give testimony at the trial it will be hardly possible to keep the fact from the jury, and it is easy enough to see how much such an element in the case might be used to excite sympathy, stimulate prejudices, and in some cases possibly to ■enhance damages.

The order appealed from should be affirmed, with costs.

All concur, except Earl, Eiítoh and Bártlett, JJ., dissenting.

Order affirmed.


text:
    Court of Appeals.
    Filed February 27, 1894.
    William T. Reynolds et al., App’lts, v. William S. Horton, Resp’t.

      Milton A. Fowler, for app’lts; A. V. 8. Oochrane, for resp’t.
   No opinion. Order affirmed, with costs. All concur.

Affirming 51 St. Rep., 545.


text:
    People ex rel. George R. Van Alstyne, App’lt, v. Burton H. Davy, Sheriff, Resp’t.

      R. B. Rallock, for app’lt; Roward R. Widener, for resp’t.
   No opinion. Order affirmed, without costs. All concur.

Affirming 50 St. Rep., 937.


text:
    Margaret Coby, Resp’t, v. Frank Ibert, App’lt.

      Moffett & Kramer, for app’lt; R. (?. Lansing, for resp’t.
   No opinion. Appeal from order affirming order denying motion to vacate admission of service, etc., dismissed, with costs. All concur.


text:
    Margaret Coby, Resp’t, v. Frank Ibert, App’lt.

      Moffett & Kramer, for app’lt; R. O. Lansing, for resp’t.
   No opinion. Order affirming order denying motion to set aside amended complaint, etc., affirmed, with costs. All concur.


text:
    Melvin Stephens, Resp’t, v. Robert Louis Humphryes et al., App’lts.

      Dennis McMahon, for app’lts; Albridge G. Smith, for resp’t.
   No opinion. Order affirmed on opinion below, with costs. All concur.

Affirming 56 St. Rep., 70.


text:
    In the Matter of Sarah Lawrence Hazard’s Estate.

      John J. Grawford, for app’lt; L. A. Lockwood and John D. Taylor, for resp’ts.
   No opinion. Order affirmed on opinion below, with costs. All concur.

Affirming 56 St. Rep., 82.


text:
    Richard Deeves, App’lt, v. Metropolitan Realty Co. of City of New York, Resp’t.

      David Thornton, for app’lt; Qhas. J. Ra?-dy, for resp’t.
   No opinion. Order affirmed on opinion below, with costs. All concur.

Affirming 55 St. Rep., 399.


text:
    Henry W. Wedge, Resp’t, v. James W. McMahon et al., App’lts.

      W. R. Renderson, for app’lts; Rash, Rich & Willson, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur.

Affirming 33 St. Rep.. 951.


text:
    Herman Gernau, App’lt, v. Oceanic Steam Nav. Co., Limited, Resp’t.

      Ohas. Steclcler, for app’lt; Everett P. Wheeler, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.

Affirming 54 St. Rep., 936.


text:
    Charlotte E. Patten, Resp’t, v. United Life & Acc. Ins. Ass’n, App’lt.

      Edward T. Oldham, for app’lt; J. A. Shoudy, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur.

Affirming 54 St. Rep., 117.


text:
    James Teneyck et al., App’lts, v. Rector, etc., of Protestant Episcopal Church, Resp’t.

      Arthur L. Andrews, for app’lts; Abraham Lansing, for resp’t.
   No opinion. Judgment affirmed on the prevailing opinions below, with costs. All concur.

Affirming 47 St. Rep., 521.


text:
    Filed March 13, 1894.
    Eugene Smith, App’lt, v. Frederika Rentz, Resp’t.

      II. B. Olosson, for app’lt; Leopold Leo, for resp’t.
   No opinion. Appeal dismissed, without costs. All concur.

See. 56 St. Rep., 128.


text:
    Jacob Heintz, Resp’t, v. James Everard, App’lt.

      Drnid M. Newberger, for app’lt; Geo. P. llotaling, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.

Affirming 48 St. Rep., 935.


text:
    Filed March 20, 1894.
    Moses T. Sayles, App’lt, v. National Water Purifying Co., Resp’t.

      E. F. Bullard, f.or app’lt; W. B. Dunlap, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.

Affirming 41 St. Rep., 856.


text:
    Mary F. Crone, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.

      James Fraser Gluck, for app’lt; Myron II. Clark, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., taking no part.

Affirming 48 St. Rep., 408.


text:
    John Baker, App’lt, v. New York Cent. & H. R. R. R. Co., Resp’t.

      J Newton Fiero, for app’lt; Hamilton Harris, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., taking no part.

Affirming 49 St. Rep., 917.


text:
    William C. Allison, App’lt, v. Florence Y. Loomis et al., Resp’ts.

      Theron G. Strong, for app’lt; Louis Marshall, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion in general term on first appeal. All concur.

Affirming 29 St. Rep., 617.


text:
    John F. J. Xiques, App’lt, v. Bradstreet Co., Resp’t.

      Hector M. IMtchings, for app’lt; John II. Bird, for resp’t. .
   No affirmed, with costs, on opinion below. All concur.

Affirming 53 St. Rep., 814.


text:
    T. Thomas Fortune, Resp’t, v. James Trainor, App’lt.

      Julius Lehmann, for app’lt; T. MeOants Stewart, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.

Affirming 47 St. Rep., 58.


text:
    Morris S. Miller, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.

      O. D. Prescott, for app’lt; D. F. Searle, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., not voting.

Affirming 48 St. Rep., 23.


text:
    Howe’s Cave Ass’n, App’lt, v. Peter Houck, Resp’t.

      Wm. O. Lamont, for app’lt; G. M. Palmer, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, except Earl, J., not voting.

Affirming 49 St. Rep., 5.


text:
    Charles H. Southard, App’lt, v. Maria Moss, Resp’t.

      Horace Secrr, Jr., for app’lt; Hamilton B. Squier, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 225.


text:
    Charles H. Southard, Resp’t, v. Frederick S. Myers, App’lt.

      Hamilton B. Squier, for app’lt; Horace Secor, Jr., for resp’t.
   Ho opinion. Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 939.


text:
    Filed April 17,1894.
    The People ex rel. John L. Ryder, Resp’t, v. The Clerk of the Board of Supervisors of Kings County, App’lt.

      James C. Church, for Ceoi'geF. Elliott, for resp’t.
   Per Curiam.

This is a controversy between John L. Ryder upon the one part and Richard L. Baisley upon the other, to determine which is the rightful supervisor of the town of Flatlands, Kings County, for the current year. Both parties desire to have the controversy determined upon its merits, and the question whether it can properly he determined in this proceeding by mandamus against the clerk of the board of supervisors has not been discussed, and is not noticed in the briefs submitted to us. We do not, therefore, determine it. We are satisfied that the decision of the court below is right upon the merits, and we affirm its decision upon the opinion there pronounced. The order should be affirmed, wiili costs. All concur. Order affirmed.

Affirming 58 St. Rep., 738.


text:
    Supreme Court-General Term-First Department.
    Filed October 13, 1893.
    First Nat. Bank of Plainfield, App’lt, v. Augustus B. Carrington et al., Resp’ts.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by Van Brunt, P. J., withheld from publication by direction of the court.


text:
    Filed January 12, 1894.
    Lucy H. Kuhn, Resp’t, v. New York El. R. Co. et al., App’lts.
   Per Curiam.

All the questions, except one of fact, raised upon this appeal, seem to have been passed upon by the court of last resort; and, although those decisions are not entirely harmonious, we do not think there has been any departure from the rules laid down by those adjudications, apd, upon the consideration of the evidence, we see no reason for interfering with the conclusions as to the damage sustained by the premises in question of the learned court below. The gravamen of the argument upon the part of the counsel for the defendant seems to be that no property in the city of Hew York would ever have increased in value had it not been for the existence of the elevated railroads, and that they are the beneficent authors of all the prosperity which has blessed our city. We do not think that the evidence in this case requires us to consider this proposition.

The judgment should be affirmed, with costs.


author: PER CURIAM

text:
    The People ex rel. Standard Gaslight Co., Resp't, v. Michael T. Daly, Commissioner, App'lt.
   PER CURIAM

The order granting a peremptory writ of mandamvs, ~equiring the commissioner of public works to forthwith award and grant permits to the Standard Gaslight Company to open certain streets, for the purpose of laying mains and making main connections, was in accordance with a previous decision of the court. Since the granting of the order appealed from, that decision has been affirmed. The order should be affirmed, with $50 costs and printing disbursements.


text:
    Filed February 16, 1894.
    Louis Bauer, Resp’t, v. John L. McCauley, App’lt.
   Ho opinion. Order affirmed, with §10 costs and disbursements.


text:
    In the Matter of the Broadway & S. A. R. Co. et al.

   Ho opinion. Motion granted.


text:
    Mary A. Browne, App’lt, v. John M. Baker et al., Resp’ts.
   Ho opinion. Motion to dismiss appeal granted, with §10 costs.


text:
    Alexander Chisholm, App’lt, v. Moses P. Prout, Resp’t.
   No opinion. Order affirmed, with. $10 costs and disbursements.


text:
    Theodore Conkling et al., Resp’ts, v. Lissie H. Zerega, App’lt.
   No opinion. Motion denied.


text:
    In the Matter of George W. Cullum’s Estate.
   No opinion. Decree affirmed, with costs.


text:
    Gustave Heye, Resp’t, v. Henry M. Tilford et al., App’lts.
   No opinion. Order reversed, without costs, and motion granted upon payment of $10 costs, and upon condition that defendant pay the costs of the action which had accrued at the time of the motion; costs to he taxed by the clerk.


text:
    Julius Imgard, Resp’t, v. Walter B. Duffy, App’lt.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    William C. Kibbe, Resp’t, v. William R. Brixey, App’lt.
   No opinion. Order reversed and motion granted, without costs to either party; the amended answer tendered to he served within five days after notice of order to be entered upon this decision.


text:
    Louis F. Martin et al., Resp’ts, v. Eliza Jane Adams et al., App’lts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Samuel M. Mitchell, Resp't, v. O’Reilly, Skelly & Fogarty Co., App’lt.
   No opinion. Judgment and order affirmed, with costs.


text:
    Herman Passavant, Resp’t, v. David Gutlohn et al., App’lts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Carroll L. Riker, Resp’t, v. Robert G. Dun et al., App’lts.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Alfred H. Smith et al., Resp’ts, v. Adolph Bernhard et al., App’lts.
   Per Curiam.

There is nothing in the cause of action alleged in the complaint showing the necessity for an examination of the books. The order should be reversed, with $10 costs and disbursements, and motion denied, with $10 costs.


text:
    Eugene Smith, as Executor, etc., Resp’t, v. Frederika Rentz, App’lt.
   No opinion.—Judgment affirmed, with costs.


text:
    John Storer, App’lt, v. David Jones Co., Resp’t.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Amelia Stuyvesant, Resp’t, v. New York Floating Dry-Dock Co., App’lt.
   No opinion. Judgment affirmed, with costs on opinion of referee.


text:
    In the Matter of Augustus Zerega’s Will.
   No opinion. Order affirmed, without costs.


text:
    Filed March 16, 1894.
    American Exch. Nat. Bank, Resp’t, v. John H. Cheever, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Moses R. Crow et al., App’lts, v. William E. Coffin et al., Resp'ts.
   No opinion. Motion granted, with $10 costs.


text:
    Continental Ins. Co., Resp’t, v. Phenix Ins. Co. of Brooklyn, Applt.
   No opinion. Judgment affirmed, with costs.


text:
    In the Matter of Sarah N. Guzman.
   No opinion. Motion denied, on payment of $10 costs.


text:
    Manhattan Life Ins. Co., App’lt, v. Morris Alexander, Resp’t.
   No opinion. Judgment reversed and new trial ordered, with costs to appellant to abide event.


text:
    Manufacturers’ Nat. Bank of New York, Resp’t, v. Hezekiah F. Lord et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    John W. O’Reilly, Resp’t, v. Mayor, etc., of City of New York, App'lt.
   No opinion. Judgment affirmed, with costs.


text:
    Filed March 16, 1894.
    Bowman, Thompson & Co., Limited, Resp’t, v. Joseph F. Fuerst, App’lt.

      I. M. Diltenhoeffer, for app’lt; James Dunne, for resp’t.
   Per Curiam.

For the reasons expressed in the case of Bowman, Thompson & Co. v. Fuerst, 59 St. Rep.-, the order appealed from should be affirmed, with costs.


author: Cullen, J.

text:
    General Term, Second Department.
    Filed, February 12, 1894.
    In the Matter of Honora Callaghan’s Estate. In the Matter of Metropolitan Brewing Company.
   Cullen, J.

This appeal presents the same question decided by this court in 69 Hun, 161, 52 St. Rep. 537, on an appeal from the same decree taken by other creditors. On the authority of that decision the order appealed from must be reversed, and a decree entered for the payment to appellant of its share of the fund, with costs of this appeal to be paid out of the estate.


author: Dykman, J.

text:
    Davenport v. Brooklyn El. R. Co.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict of a ' jury against the defendant in favor of the plaintiff for $150, and from an order denying the motion for a new trial upon the minutes of the court. The appeal is based upon the exception to the judge’s charge, to the admission of improper testimony, and the denial of the motion for a new trial. These cases have now become familiar, and we have examined all these questions, and find no error. The questions involved were questions of fact for the jury, and the verdict is supported by evidence. The judgment and order should be affirmed, with costs.


text:
    Elizabeth Delancey, Resp’t v. Henry Piepgras et al., App’lts.
   Cullen, J.

This action is in ejectment to recover certain lands under water. The plaintiff recovered at circuit, and the court granted an extra allowance of $300. At general term the judgment was affirmed, with costs. The court of appeals modified the judgment by reserving to the upland owners certain privileges, and affirmed the judgment as modified. After the judgment of the court of appeals the defendant moved on affidavit to set aside the order granting the extra allowance, which application was denied. From that order this appeal was taken. He also makes an original application to the general term to modify its previous judgment of affirmance by striking out the recovery of costs. Assuming the power of this court to modify their previous judgment after their affirmance by the court of appeals, we think that the defendant should succeed in neither application. The extra allowance at circuit was granted on the affidavit that the value of the land recovered was $15,000. The allowance, therefore, was far within the power of the court. On the application to strike out the extra allowance the affiant has made affidavit that if, as he is informed, the defendant has an easement over every part of the land recovered, in his opinion the land subject to such easement is of no market value. It is sufficient to say that the affiant is mistaken as to the result of the decision of the court of appeals, and that his information in this respect was incorrect. His affidavit, based on this error, therefore wholly fails, and the application was properly denied. If the general term had modified the recovery at circuit to the same extent subsequently made by-the couit of appeals, still the costs of the appeal would have been in the discretion of the court. The substantial litigation was as to the plaintiff’s title to the land. The reservation was but a minor feature of the controversy. The plaintiff, having succeeded on the main issue, we think was entitled to the costs of the appeal. The order appealed from should be affirmed, with $10 costs and disbursements, and the application to the general term should be denied with $10 costs. All concur.


author: Pbatt, J.

text:
    William Jacklin v. National Life Ass’n of Hartford.
   Pbatt, J.

The opinion filed by the court below covers all the questions, and renders further discussion unnecessary. Judgment affirmed with costs.


text:
    Daniel McCampbell, Resp’t, v. Cunard Steamship Co., Limited, App’lt.
   Cullen, J.

This is an appeal from a judgment for the plaintiff, entered on the verdict of a j ury. The action was servant against master, to recover for personal injuries suffered owing to the alleged negligence of the defendant. On the first trial of the action, I directed the complaint to be dismissed. On appeal, that decision was reversed. As both my associates concurred in the opinion delivered on appeal which covers the question now raised, and as the trial court followed the law laid down by the general term, it follows that this judgment must be affirmed. Judgment ana order denying new trial affirmed, with costs.


text:
    Plaut v. Moores.
   Dykman, J.

These are three appeals from orders which were made respectively on the 5th, 13th and 21st days of October, 1893. The first order directed the appellant to complete his purchase of certain premises under a sale in foreclosure. The second order directed the cancellation of a notice of Us pendens filed against the property. The third order denied an application to set aside the order of the 13th day of October, 1893. These appeals are entirely destitute of merit, and the orders should all he affirmed, with §10 costs and disbursements on one appeal only.


author: Mayham, P. J.

text:
    General Term—Third Department.
    Filed February 13, 1894.
    Sarah E. Davenport, App’lt, v. Pennsylvania Fire Ins. Co., Resp’t.
   Mayham, P. J.

We think that the conclusion of the referee in this case was correct, and that the judgment should he affirmed. Judgment affirmed, with costs. All concur.


author: Herrick, J.

text:
    In the Matter of John K. Pruyn.
   Herrick, J.

After a careful review of the facts and authorities in these cases, I can see no reason for a reversal of the orders made therein, and no occasion to write an opinion. The orders should be affirmed, with §10 costs, and printing and other disbursements in each. Mayham P. J., concurs; Putnam, J., not acting.


text:
    Francisco Wood v. Town of Gilboa.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Filed March 1, 1894.
    Carl Glocker v. Spencer Optical Works.
   No opinion. Motion for leave to go to court of appeals granted.


text:
    H. Cooley Green, Resp’t, v. Daniel C. Easton, App’lt.
   No opinion. Motion for reargument denied, with §10 costs.


text:
    Sidney E. Maders, Resp’t, v. William I. Whallon et al., App’lts.
   No opinion. Motion for reargument granted.


text:
    In the Matter of William O’Brien's Will.
   No opinion. Motion to dismiss appeal denied, with $10 costs.


text:
    Hiram C. Roblee, Resp’t, v. William Barss, App’lt.
   No opinion. Motion for leave to go to court of appeals denied, with §10 costs.


text:
    In the Matter of the Accounting of Sarah M. Ryalls, as Administratrix, Etc.
   No opinion. Motion for reargument granted.


text:
    Rebecca Sutherland, Resp’t, v. Troy & B. R. Co., App’lt.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    General Term—Fourth Department.
    Filed Februry 15, 1894.
    Harry G. Clay et al., App’lts, v. George C. Hayes et al., Resp’ts.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    George Lester, Resp’t, v. William A. Wright, App’lt.
   No opinion. Order reversed, with §10 costs and disbursements, and motion granted, without costs.


text:
    John W. McCallum, Resp’t, v. Hoboken Ferry Co., App’lt.
   No opinion. Judgment and order affirmed, with costs, and leave granted to defendant to answer, on payment of costs of demurrer and of the appeal.


text:
    Mortimer M. Mayhew, App’lt, v. Town Board of Marcy, Resp’t
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Ralph W. Morrison, Resp’t, v. Jacob L. Everitt, App’lt.
   No opinion. Judgment of the county court affirmed, with costs.


text:
    In the Matter of Lewis E. Mosher, Justice of the Peace.
   Proceeding dismissed. Per curiam memorandum filed with the clerk of Broome county.


text:
    The People, Resp’t, v. Anthony Girard, App’lt.
   No opinion. Leave granted to appeal to the court of appeals, as the case involves a question of law that ought to be reviewed by that court.


text:
    In the Matter of the Accounting of Cornelius A. Smedley, as Guardian, etc.
   No opinion. Decree modified by deducting from the award §40.85 for commissions, and, as modified, affirmed, without costs of the appeal to either party.


text:
    Samuel R. Smith, Resp’t, v. Edwin M. Knowlton et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    Henry M. Washon, App’lt, v. Daniel C. Winton et al., Resp’ts.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    General Term—Fifth Department.
    Filed, October 20, 1893.
    Allegany Lumber Co., Limited, App’lt, v. William Hoyt et al., Resp’ts.
   No opinion. Motion for judgment denied, and case struck from the callendar.


text:
    Richard Foran, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
   No opinion. Judgment modified in accordance with the stipulation of the attorneys.


text:
    Ann Lee, as Administratrix, etc., App’lt, v. John Van Voorhis et al., Resp’ts.
   No opinion. Motion to dismiss appeal granted, unless appellant, within 30 days, restores to the depository the amount of money withdrawn by her therefrom. If such amount is restored, the motion is denied.


text:
    Alexander McAndrew, Resp’t, v. Lake Shore & M. S. R. Co., App’lt.
   No opinion. Motion for reargument denied, with §10 costs.


text:
    Martin Mahoney, App’lt, v. Julia A. Mahoney, Resp’t.
   No opinion. Motion for reargument denied.


text:
    William Miller et al., Resp’t, v. Elijah Boyer, App’lt.
   No opinion. Motion to dismiss appeal denied, and case struck from the calendar.


text:
    Hugh Merancy Murphy, Resp’t, v. James W. Whitney, App’lt.
   No opinion. Motion for reargument denied, and leave to appeal to the court of appeals granted, on the ground that in our opinion the questions arising therein are of sufficient importance to render a decision of that court desirable before proceeding further.


text:
    Sophia Quigley v. City of Rochester.
   No opinion. Motion to dismiss appeal denied.


text:
    Timothy Sheehan, Resp’t, v. Albert H. Pierce, App’lt.
   No opinion. Motion for reargument denied. Motion for leave to appeal to-the court of appeals granted, on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    Joseph Van Camp v. Edward P. Searle et al.

   No opinion. Motion to dismiss appeal, etc., denied.


text:
    Filed, January 18, 1894.
    Emma E. McCabe et al., Resp’ts, v. City of Buffalo, App’lt.
   Per Curiam.

This case was once before in this court on a similar appeal by the defendant, and a new trial was granted on the ground that the evidence failed to show that the plaintiffs were not guilty of negligence which contributed to produce the injury complained of. Upon the new trial which has been had, the evidence adduced seems to have taken the plaintiff’s case out of the condemnation of our previous judgment, so far, at least, as to render the question of the plaintiffs’ contributary negligence properly a question of fact to be submitted to the jury. It was so submitted, with instructions which did no violence to the principles upon which the previous appeal was determined; and there was no exceptions taken on the trial which seem to require discussion. It follows that the judgment and order now appealed from should be affirmed. All concur.


text:
    New York Superior Court—General Term.
    Filed January, 1894.
    Frances S. Naylor et al., Resp’ts, v. H. C. Pelly, App’lt.
   Per Curiam.

Order affirmed, with §10 costs and disbursements.


text:
    Filed February 5, 1894.
    Richard J. Lassiter, Resp’t, v. Edith Clyde Hoes, App’lt.
   No opinion. Order affirmed, with §10 costs.


text:
    New York Common Pleas—General Term.
    Filed February 5, 1894.
    Hans F. Jorgensen; Resp’t, v. Ministers, etc., of Reformed Low Dutch Church of Harlem, Appl’t.
   Per Curiam.

Whether to allow the stay was a matter within the discretion of the special term judge, and upon the papers we are well satisfied with the exercise of his discretion. Order affirmed, with costs.


text:
    Alfred Epstein, Resp’t, v. Charles Hodgetts, App’lt.
   No opinion. Motion for leave to go to the court of appeals denied, with §10 costs.


text:
    James Flanagan, as Executor, etc., App’lt, v. Patrick Fox, Resp’t.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Annie Haines, Resp’t, v. Denman Thompson et al. App’lts. Swain, Resp’t, v. Same.
   No opinion. Motion for reargument denied, with §10 costs.


text:
    The People, Pl’ff, v. Carlton H. Betts et al., Def’ts.
   Per Curiam.

Neither the record of forfeiture nor a copy of the judgment nor a certificate of the district attorney is annexed to the papers with. The application to vacate the judgment of forfeiture must therefore be denied. See People v. Lasher, 34 St. Rep. 624.


text:
    The People, Pl’ff, v. Joseph O’Donnell et al., Def’ts.
   Per Curiam.

Motion granted. The certificate having been furnished as required by this court on a former application, and it appearing from all the papers that the defendant has been convicted, and the county has suffered no loss, the judgment of forfeiture is hereby vacated.


text:
    Martin Reynolds, App’lt, v. Thomas Patten, Resp’t.
   No opinion. Motion for reargument granted.


text:
    Sarah Riordan, Resp’t, v. First Presbyterian Church of Tremont.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Annie Seaman, Resp’t, v. T. A. Snider Preserve Co., App’lt.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    William R. Tobin, Resp’t, v. Manhattan Sav. Inst., App’lt.
   No opinion. Motion for leave to appeal to the court of appeals denied,'with $10 costs.


text:
    Franz Wagner, Resp’t, v. Herbert M. Kingsley et al., Appl’ts (two cases). Ernest Schneider, Resp’t, v. Same.
   No opinion. Motion for leave to go to the court of appeals denied, with $10 costs.


text:
    W. D. Wilson Printing Ink Co., Resp’t, v. Austin E. Ford, App’lt.
   No opinion. Motion for leave to appeal to the court of appeals denied, with §10 costs.


text:
    Filed February 28, 1894.
    Fanny Denton et al., Resp’ts, v. Henry C. Weeks et al., App’lts.
   No opinion. Judgment affirmed, with costs.


text:
    East Side Exchange, App’lt, v. Jacob Howwitz, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Max Rothman, Resp’t, v. Prudential Ins. Co., App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Leib Shapiro, App’lt, v. Peter Steuerwald, Resp’t.
   No opinion. Judgment reversed, new trial ordered, with costs to appellant to abide the event.


text:
    Ignatz Weiss, Resp’t, v. Joseph Goodman, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Filed March 1, 1894.
    Benjamin F. Conway, Resp’t, v. Frederick Keppy, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    John Duffy, Resp’t, v. Peter McAvoy, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Cornelius Leary, Resp’t, v. Louis Lubcker, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Metropolitan Steam Laundry Co., Resp’t, v. John Chatfield, App’lt.
   No opinion. Judgment reversed, new trial ordered, with costs to abide the event.


text:
    John Steuer, App’lt, v. Gustave P. Bofinger, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Filed March 5, 1894.
    Bertha Stearn, App’lt, v. Louis Hesdorfer, Resp’t.
   No opinion. Motion to affirm judgment for non-service of printed papers on appeal denied, without costs.


text:
    Frank A. Stevens et al., App’lts, v. Maria W. Andreas, Resp’t.
   No opinion. Motion to dismiss appeal for non-service of printed papers granted.


text:
    Filed March 6, 1894.
    Lyman C. Vrooman, App’lt, v. Houston, W. S. & P. F. R. Co., Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Filed March 7, 1894.
    Jacob Appell, App’lt, v. Theodore W. Stemmler, Resp’t.
   No opinion. Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    George E. Austin, App’lt, v. Mark M. Nichols, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Michael H. Haverty, App’lt, v. New England Piano Co. of New York, Resp’t.
   No opinion. Order affirmed, with costs.


text:
    Alexander Rich, Resp’t, v. Manhattan Ry. Co. etal., App’lts.
   Per Curiam.

The law of the case is settled by the decision of the former general term upon the appeal from the interlocutory judgment in this notion; and as this appeal from the final judgment, rendered in accordance with that decision, presents no different state of fact, and no new question of Jaw, tlie judgment will be affirmed.


text:
    Filed March 8, 1894.
    Charles Goebel, Resp’t, v. Isabella C. Goebel, App’lt.
   No opinion. Order affirmed, with costs.


text:
    Robert C. McBride, App’lt, v. George W. Venable et al., Resp’ts.
   No opinion. Order affirmed, with costs.


text:
    James R. Nichols et al., App'lts, v. Albert W. Harris, Resp’t.
   No opinion. Order affirmed, with costs.


text:
    Lewis Sylvester et al., Resp’ts, v. Solomon M. Jacoby, App’lt.
   No opinion. Appeal dismissed for nonservice of printed papers, with $10 cost and disbursement, to abide the event of the action.


text:
    Filed March 9, 1894.
    Eli Bennett, App’lt, v. Barbara Hart, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Henry Hosford, Resp’t, v. Charles A. Seddon, App’lt.
   No opinion. Order reversed, with costs.


text:
    The People ex rel. Michael Brady, App’lt, v. James J. Martin et al., Resp’ts.
   No opinion. Order affirmed, with costs.


text:
    Filed March 12, 1894.
    John C. McQuhae, Resp’t, v. Charles Lehman, App’lt.
   No opinion. Order affirmed, with costs.


text:
    Filed March 14, 1894.
    Mary Whitker, Resp’t, v. Forty-Second St., M. & St. N. A. R. Co., App’lt.
   No opinion. Appeal dismissed, with costs.


text:
    Filed April 25, 1894.
    Louis Drachman, Resp’t, v. New York & New Jersey Investment Co., App’lt.
    Appeal from judgment of the first district court.
   Judgment affirmed, with costs.


text:
    John Bustin, Resp’t, v. William Davis, App’lt.
    Appeal from judgment of the district court.
   Judgment affirmed, with costs.


text:
    Filed April 26, 1894.
    Joseph Boltansky et al., App’lts. v. Anna Stern, Resp’t.
    Appeal from judgment of the fifth district court.
   Judgment affirmed, with costs.


author: Bookstaver, P. J.

text:
    Samuel B. Parmlee, Resp’t, v. Associated Physicians and Surgeons, App’lt.
    Appeal from a judgment of the sixth judicial district" court of the city of New York.

      W. M. Adee, for app’lt; B. B. Simpson, for resp’t.
   Bookstaver, P. J.

We think the judgment should be reversed and a new trial ordered, on the authority of Bohn v. Loewers Brewing Company, 16 Daly, 80; Rathbun v. Snow, 15 Daly, 141; affirmed, 123 N. Y. 343, and Westerfield v. Raddis, 7 Daly, 326. Costs to appellant to abide the event.


author: FTewburger, J.

text:
    New York City Court—General Term.
    Filed January 18, 1894.
    Munczi Lajos, Resp’t, v. Eden Musee American Co., Limited, App’lt.
   FTewburger, J.

This action was brought to recover §150, claimed to be due, arising from deductions that had been made by the defendant from the salary that became payable to plaintiff. The answer, among other defenses, alleged that the contract sued upon is void as being within the statute of frauds. On the trial of the action, the defendant moved, at the conclusion of the plaintiff’s case, as well as at the end of the trial, to dismiss the complaint, on the ground that the contract is within the statute of frauds, as not to be performed within one year, and therefore no recovery can be had on any such oral contract, which motion was denied, and exception taken. The trial justice properly denied the motion to dismiss. There was a complete contract between the parties, by reason of the correspondence and telegrams between them. A careful examination of the printed case fails to disclose any errors on the trial that would warrant us in disturbing the judgment herein. Judgment affirmed with costs. All concur.


author: Ehrlich, C. J.

text:
    Filed February 8, 1894.
    Edward C. Center, Resp’t, v. Moritz Lippman, App’lt.
   Ehrlich, C. J.

The trial judge properly submitted to the jury the question whether the §80 referred to in the answer was reserved, and taken by the plaintiff for the loan and forbearauce of the money, or whether it was not to pay for the trouble and labor in investigating the value of the securities offered, and in raising the money. The jury found in favor of the plaintiff, thereby negativing all idea of usury. We think the verdict was right, and, as no errors were committed on the trial, the judgment appealed frpm must be affirmed, with costs.


author: Fitzsimons, J.

text:
    Jochm Hein, App’lt, v. John Wilkins, Resp’t.
   Fitzsimons, J.

The complaint alleges that plaintiff’s two infant daughters entered defendant’s employ as house servants; that they had, in defendant’s house, clothing to the value of $400; that the clothing was destroyed by fire; and that defendant recovered from an insurance company the value thereof, and refused to pay the same over to plaintiff, who, as father, owned his daughter’s clothing,—hence this action. The trial justice dismissed the complaint. He did right in doing so. There is no evidence showing that defendant received money from any insurance for the clothing which plaintiff’s daughters had it his house; in fact, the evidence entirely failed to support the complaint, and was rightfully dismissed. Judgment affirmed, with costs.


text:
    Ernest Lieberman, Resp’t, v. Oscar E. Vermilye et al. Appl’ts.
   Ehrlich, C. J.

The papers presented a fair case, calling for the exercise of the discretion of the court below, which was not abused by directing the defendants to furnish the bill of particulars, provided for by the order, which must be affirmed with costs.


text:
    Philip Waldheim, Resp’t, v. Abraham Sonnenstrahl, App’lt.
   Fitzsimons, J.

The plaintiff’s testimony certainly shows that he failed to comply covenant the guaranty, which provided that defendant should be notified, by postal card, if Ginns did not pay five dollars each week, on account of the goods sold; but the testimonv also shows that defendant, after Ginn’s default, waived that provision; therefore, the judgment was right, and must be affirmed, with costs. All concur.


text:
    Filed March 9, 1894.
    William H. Mook, Resp’t, v. Parke et al., App’lts.
   FTewburger, J.

This action is brought to recover damages for a wrongful discharge. It is claimed by the appellants that the only error committed on. the trial was in the rejection by the trial justice of certain evidence offered by the defendant on the trial. A careful reading of the printed case fails to disclose any error on the part of the trial justice that would warrant us in disturbing the judgment herein. Judgment affirmed, with costs.


author: Newburger, J.

text:
    Thomas G. Hague, Resp’t, v. Henry D. Cone, App’lt.
   Newburger, J.

This is an appeal from a judgment entered on a verdict. This action was brought to recover for a balance of moneys loaned, advanced, and paid out. The answer of the defendant admitted the loans and advances, but pleaded payment and a counterclaim for $2,500, the amount of a note defendant alleged he gave to the plaintiff to get discounted for him, and which he appropriated to his own use. The plaintiff claimed that said note was given to and applied by him on an account for services rendered the defendant. A careful examination of the record, and of the briefs submitted, fails to disclose any error that would warrant us in disturbing the judgment herein. Judgment affirmed, with costs.


author: White, J.

text:
    Buffalo Superior Court—General Term.
    Filed November, 1893.
    Charles J. Close, Resp’t, v. Pascal P. Beals, App’lt.
   White, J.

By stipulation of the parties, the decision in this case is to follow that in Close v. Potter, 5 Misc. Rep. 543; 25 N. Y. Supp. 972, and therefore the judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.


text:
    Filed February 2,1894.
    Bridget Keenan et al., as Administrators, Etc., Resp’ts, v. New York, L. E. & W. R. Co., App’lt.
   Per Curiam.

When this case was before this court before, we reached the conclusion that the exceptions taken by appellant should be sustained, and to that end reversed the judgment and order appealed from. A careful examination of the whole case, and an attentive consideration of the arguments submitted, fail to convince our mind that in the former decision we overlooked a controlling distinction. We still remain in the opinion that the judgment appealed from should be reversed upon the exceptions taken. We perceive no just reason why our decision in this regard should not be the subject of review by the court of appeals. Under the former decision, and the order entered thereon, this result could not be reached. To this end, and for this purpose, we have examined the facts of the case, and reach the conclusion that no reason exists for disagreeing with the determination of the court below. The order of the court will therefore be that the order denying the motion for a new trial be affirmed upon the facts, and the judgment appealed from be reversed upon the exceptions, with costs to abide the event. Williams v. Railroad Co., 127 N. Y. 643.


author: Andrews, Ch. J.

text:
    Ephraim C. Gates et al., App’lts, v. James C. De La Mare, Resp’t.

      (Court of Appeals,

      Filed May 1, 1894.)

    1. Mortgage—Lien.
    The lien of a mortgage attaches to everything which, during its existence, becomes by annexation a part of the realty,
    2. Condemnation proceedings—Mortgage.
    When the lands taken by the city of New York for street purposes are mortgaged, the mortgagee is entitled to have the award applied upon his mortgage to the extent necessary for his protection.
    3. Same—Foreclosure sale.
    Where, in such case, the foreclosure sale takes place before the confirmation of the commissioners’ report, the deed carries the award and entitles the purchaser to the whole thereof free from all claim for services in procuring an increase in such award under an agreement with the mortgagor.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made November 18, 1892, which affirmed an interlocutory judgment, entered upon an order of special term, overruling plaintiff’s demurrer to the answer herein, and directed a final judgment in favor of defendant.
    The question presented upon this appeal arises upon the following facts: September 16,1887, one Denninger, being the owner of certain lands in the city of New York, on that day executed, together with his wife, to the Harlem Savings Bank a mortgage thereon for $5,000. Afterwards proceedings were instituted in behalf of the mayor, aldermen and commonalty of the city of New York for the purpose of acquiring title to lands required for Melrose avenue, which was laid out through the lands of Denninger. On June 7, 1888, commissioners of estimate and assessment were appointed in the proceedings. On November 16, 1888, Denninger entered into an agreement, in writing, with the "defendant, an attorney of the court, whereby he authorized him to take proceedings to have any awards which might be made to Denninger for the part of his property to be taken for the avenue increased, and any assessment upon any of his property reduced, and agreed that in case the defendant should succeed “in obtaining ■any increase of such awards, or reduction of such assessments, to pay him (defendant) one-quarter of the amount of such increase or reduction.” The commissioners made their preliminary report, of which notice was given February 14, 1890, in which they awarded to Denninger for the part of his land to be taken for the avenue the sum of $8,100. The defendant thereupon appeared before the commissioners, and as the result of bis efforts the award was increased $3,484 over that originally made. The final report of the commissioners was dated October 1, 1890 and was confirmed by order of the court May 1, 1891. Meanwhile on February 4, 1891, after the date of the final report, but before its confirmation, an action was commenced against Denninger and others for the foreclosure of the mortgage to the Harlem Savings Bank. The city of New York was not made a party to the foreclosure action. March 28, 1891, judgment of foreclosure and sale was entered. April 21, 1891, the mortgaged premises were sold at public sale, pursuant to the judgment, to one Jacob L. Toch. The amount bid does not appear. The sum ascertained by the judgment to be due on the mortgage was $5,461.73. May 25, 1891, the referee appointed in the foreclosure judgment to make the sale executed to the purchaser a deed in which was recited the prior judgment and proceedings and which purported to convey to Toch the whole premises embraced in the mortgage to the Harlem Savings Bank. The city has paid into court the amount of the award made to Denninger. The defendant claims a lien on the award under his agreement with Denninger of November 16, 1888, to the extent of $871, with interest, that being one-fourth of the increase of the final award over the original award made by the commissioners.
    The plaintiffs, who have succeeded to the rights of ' Jacob L. Toch, the purchaser on the foreclosure sale, claim that by his purchase and the conveyance made pursuant thereto, the title to the whole award became vested in him, free from any lien in favor of the defendant.

      George W. Stephens, for app’lts; James G. L>e La Mare, for resp’t.

       Reversing 49 St. Rep., 775.

   Andrews, Ch. J.

The mortgage to the Harlem Savings Bank was a paramount lien on the mortgaged property. The title of Denninger was subject to the mortgage, and any rights in the land which he might subsequently create would be subordinate to the mortgage. The power of sale upon default in the payment of the mortgage was an essential element of the mortgage security, and could not be taken away or impaired by any act or contract of the mortgager. The lien of a mortgage attaches not only to the land in the condition in which it was at the execution of the mortgage, but to everything which becomes by annexation a part of the realty during the, existence of the mortgage. Improvements made upon the land and buildings or structures erected thereon by the owner are immediately covered by the lien of the mortgage as effectually as though they had existed when the mortgage was executed. The statute authorizes liens in favor of mechanics and materialmen who have furnished labor or materials in the erection of buildings under a contract with the owner of lands. But liens so acquired cannot displace the lien of a prior mortgage, although the mortgage security has been strengthened by the new erections, nor, indeed, even though they furnished the principal element of value which made the mortgage collectible. We refer, of course, to cases where the mortgagee was not a party to the transaction and had not consented to subordinate his lien to the claims of other creditors.

The agreement between Denninger and the defendant was made in November, 1888, more than a year after the mortgage had been made to the savings bank. The bank was not a party to the agreement, nor, so far as it appears, did it have any notice of its existence until after the sale on the foreclosure of the bank mortgage on the 21st of April, 1892. When the agreement was made proceedings had been instituted by the city of New York to acquire title to part of the lands of Denninger covered by the mortgage, for the purpose of a street, under the right of eminent domain. The agreement was entered into by Denninger as owner of the lands and for his own benefit. He could not make any agreement binding upon the savings bank, or which would affect its rights under the mortgage. If the proceedings were prosecuted to a final consummation the city would acquire title to a part of the mortgaged premises required for the street. All pre-existing titles and interests would thereupon become extinguished and the award of the commissioners would stand as a substitute for the land taken. Where the lands taken are mortgaged, the mortgagee would be entitled to have the award applied upon his mortgage to the extent necessary for his protection, and the remainder would be payable to the owner of the land. The court upon application would adjust the rights of the several claimants of the award according to their legal and equitable interests. Astor v. Hoyt, 5 Wend. 605; Bank of Auburn v. Roberts, 44 N. Y. 192 ; Barnes v. Mayor, 27 Hun, 236; 1 Jones on Mort. § 708. The agreement of November 16, 1888, between Denninger and the defendant, was on its face, a personal contract between the parties, upon which, so far as it appears, an action may now be maintained by the defendant to recover the stipulated compensation. It may be conceded, also, that upon the making and confirmation of the award, the agreement operated as an equitable assignment to the defendant of any interest of Denninger therein, to the extent of the compensation agreed upon. But we perceive no principle whereby the claim of the defendant can be preferred as against the savings bank mortgage. If all the property covered by the mortgage had been taken by the city, the defendant could have made no claim on the award except upon any surplus remaining after payment of the mortgage debt. It may be true that the defendant, by his services, increased the award. But in rendering these services, he was acting under the employment of Denninger, and not as the agent or employee of the mortgagee. In law the final award represented the actual value of the land, no more and no less, and the land was primarily pledged as security for the mortgage, and the priority of lien was transferred from the land to the award, and could not be subordinated to a lien subsequently created by Denninger in favor of the defendant, for services in the condemnation proceedings, however beneficial the services may have been either to Denninger or the mortgagee. So, also, a title to the award derived under the mortgage would be paramount to any lien or claim of the defendant under his agreement with Denninger. The right to enforce the mortgage by sale of the mortgaged premises, and to vest in the purchaser the land mortgaged, extinguishing thereby the title of the mortgagor, is, as we have said, one of the most important elements in a mortgage security. When the premises were bid off by Toch on the sale of the foreclosure judgment, April 21, 1891, there had been no confirmation of the report of the commissioners of estimate and appraisal. The confirmation did not take place until May 1, 1891. The title of Denninger to the lands included in the street was not divested at the time of the sale. By the terms of the Consolidation Act, under which the street opening proceedings were taken, following the prior statutes and decisions, the title of the owner is not divested until the confirmation of the report of the commissioners. Indeed, until that event the proceedings may, , in a certain contingency, be abandoned. Consolidation Act of 1882, § 900 ; Matter of 17th Street, 1 Wend. 262; Matter of 11th Avenue, 81 N. Y. 436. Toch, the purchaser on the foreclosure sale, became entitled to a conveyance from the referee on completing his purchase, and he received a deed May 25, 1891, purporting to convey the entire premises sold. This deed was in accordance with the sale, but intermediate the sale and conveyance, and on May 1,1891, the court had confirmed the report of the commissioners. Much was said on the argument upon the question whether the deed of May 25th took effect by relation as o'f the date of the sale. It does not seem to us that this is a material inquiry. The sale was in fact followed by a deed made in pursuance thereof. The purchaser, on completing his purchase, became entitled to a-deed of the whole land embraced in the mortgage. If, on the day of the purchase, the deed had been executed, the subsequent award would unquestionably have belonged to the purchaser. The deed, when executed, operated, we think, to carry the award which, at that date, represented a part of the land purchased. It was a part of the mortgage contract that on default the mortgaged premises could be sold and the title transferred by a public judicial sale. The defendant’s agreement was subject to this right. The deed, when executed, confirmed the sale previously made, and transferred the award to the purchaser free from any claim either of Denninger or the defendant. All parties interested in the land, or claiming liens thereon, could have protected their rights by seeing that the premises upon the sale brought their full value. So, also, if they had inadvertently omitted to protect their rights on the sale, or other circumstances had occurred after the sale which made it inequitable to complete it, they could have applied to the court for a resale or other equitable relief. We think, however meritorious the claim of the defendant may be,the sustaining of the judgment in this case would furnish a dangerous prece-

dent, affecting the security of mortgages on land. The case of Home Insurance Co. v. Smith, 28 Hun, 296, arose between the plaintiff, who claimed under an assignment of an award in street opening proceedings from the purchaser on the foreclosure of a mortgage, which covered part of premises subsequently taken for a street, and the defendants, who claimed a lien on the award under an agreement similar to the one in this case, made with the owner of the mortgaged premises. The sale on .the foreclosure was made after the report of the commissioner's of assessment and estimate had been confirmed, and brought enough to satisfy the mortgage. It was held that the title of the owner to the part of the mortgaged premises taken for the street having been divested by the confirmation of the report prior to the sale on the foreclosure judgment, the sale operated only upon the remaining land, and that the part of the land for which the award was made was 'as “completely excluded by the proceedings from the mortgage as though it had never been encumbered by it,” and that, consequently, the purchaser acquired no title in law or equity to the award and could transfer none. It was held that, under the circumstances, the award belonged to the owners of the land taken and was subject to the lien created by their agreement. This case has no analogy to the present one.

The judgment of the general and special terms should be reversed and the demurrer of the plaintiff to the answer sustained, with leave to the defendant to answer on payment of costs.

All concur.

Judgment accordingly.