text:
    John Y. Monaghan v. The New York Central and Hudson River Railroad Company.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Master and servant—What constitutes the servant, the representative OE THE MASTER.
    This action was brought to recover tor injuries suffered, it was claimed, through the negligence of the defendant. One of the acts of negligence alleged was that of the defendant’s operator at a station on the road over which the plaintiff, an employee of the defendant ran his engine Certain rules had been laid as to the operation of that portion of the road, and the operator was charged with the duty of controlling and directing the movement of trains at that point. Held, that the relation of representative in the'sense requisite to render the act of the servant that of the principal, did not necessarily depend on the rank -which he occupied, but upon the character of the act which he was called upon to perform.

      2. Same—Co-servants—Who are.

      Held, that an act by the telegraph operator within the system of rules provided with regard to the movement of trains upon the portion of the road at which he was engaged, was not such as made him the alter ego of the defendant. That he performed such act as the co-servant of the plaintiff an engineer in the employ of the defendant.
    3. Same — Obligation op master to furnish suitable machinery, etc.

      Held, that it was the duty of the defendant to use reasonable care in supplying the employees with suitable machinery, tools and appliances so that they might not be unnecessarily exposed to danger from their use in the service.
    4 Same—Servant’s knowledge of the dangerous condition of machinery EXEMPTS MASTER.

      Held, that for an injury received by an employee which was attributable to defects in the machinery, appliances, etc., furnished, of which the employee had knowledge before using it, the defendant could not be held liable
    Motion by the plaintiff for a new trial on exceptions taken at Monroe circuit and ordered heard at general term in the first instance.
    The action is to recover damages for personal injuries of the plaintiff alleged to have been occasioned by the negligence of the defendant. ■ At the close of the evidence on the part of the plaintiff a nonsuit was directed. He moves for a new trial.

      William 8. Oliver, for pl’ff; A. H. Harris, for def’t.
   Bradley, J.

The plaintiff, a locomotive engineer in the service of the defendant, made a trip on the defendant’s road from Eochester to Lyons and return on the morning of May 21st, 1882, with an engine and train of cars. After his return the engine was detached from the train and run to a Y in the western part of the city of Eochester to turn it around, and having done so, he was proceeding east with the engine when it was run into by another engine and the plaintiff received severe personal injury.

The defendant was then engaged in elevating its tracks through the city, in consequence of which its then provision was such, that all trains going east through the city west of York street were run upon a single track This situation brought there on to the single track the trains from Buffalo, Niagara Falls and Charlotte. The next street west of York street and 300 feet therefrom is Childs street, west from which were six tracks of the defendant’s road numbered from the south, one to six. The Buffalo track was No. 1, and the Niagara Falls track came in from the northerly side, and the single track to which the convergence was made at or near York street to proceed therefrom was No. 2.

When the plaintiff was returning from the Y at the Niagara Falls track there was a freight train headed east standing on track No. 8, and from 100 to 200 feet west of Childs street, which the evidence tends to prove cut off his. view from an engine and caboose on the Buffalo track, No. 1, also headed east.

The defendant had a telegraph station at Childs street, from which signals were to be given to regulate the movement of trains going east; and its rule required that east bound trains from the Falls line and Charlotte should stóp at Childs street before entering upon the four tracks until the operators gave them signal to go ahead, and that no east-bound freight trains on main line pass Childs street-until told by the operator that all was clear. As the plaintiff with his engine came in on the Falls track, and some distance west of Childs street, he by the use of the steam whistle of his engine sought to call attention of the operator to his situation. And a person from the station gave a. signal to proceed, which was taken by the three engineers, whose engines were situated as before- mentioned as applicable to them respectively, but the engineer of the freight train was advised that it was not intended for him, and his-train remained, while the engine on track No. 1, and that in charge of the plaintiff proceeded forward. They passed the freight train about the same time, the plaintiffs a little in advance of the other.

Immediately after passing the freight train the plaintiff' commenced to diagonally cross the main tracks to reach No. 2, and the engine which came in on track No. 1, was proceeding to the same point, the junction of which was-near York street. It seems that the signal from the operator to go forward was intended only for the engine and caboose on the Buffalo track, and when the plaintiff’s engine came on to Childs street, signal was given to him to stop, which he undertook to do by shutting off steam and reversal of the motive power of his engine. And seeing that did not stop the engine, and that it was too far ahead to stop in time to avoid collision, he concluded to restore the power to give it forward motion. And in his attempt to change the reverse lever for that purpose, the throttle or handle blew out, and he could not operate the lever, and the-pressure of the steam remained reversed and tended to stay its forward motion, although the pressure was so low that the engine continued ahead. And the approaching engine struck the tender of "the plaintiff’s engine, producing the collision and injury complained of. The plaintiff charges-that the injury was occasioned by the defective condition of the engine. Also that the plaintiff was placed in the position which caused the collision by the fault and negligence of the defendant’s telegraph operator at Childs street station, and that his negligence was that of the defendant. The relation of representative in the sense requisite to render the performance of an act of the servant that of the principal does not necessarily depend upon his rank in the service, but upon the character of the act he is called upon to perform. Crispin v. Babbitt, 81 N. Y., 516. In view of the situation at the locality in question the defendant had organized a system with the view to the operation with reasonable dispatch and safety of this portion of its road. It had made rules for that purpose, of which the plaintiff was advised, and had employed men to conduct that system, direct its execution, and to aid in the observance of the rules so provided. There is no question about the sufficiency of these rules and their reasonable application to the situation. The telegraph operator was charged with important duties at that point, as upon him was imposed the duty of controlling and directing the movement of trains there This was within the system which the rules provided for at that particular locality, and did not make him the alter ego of the defendant. Slater v. Jewett, 85 N. Y, 61

The service required of him was within and subordinate to a department of the business of the company in the performance of which he necessarily had to exercise some discretion and judgment in giving preference by means of signals in the movement of trains on to the single track, with view to the safety and protection of persons and property, and for the orderly operation of the road, but that did not make his judgment that of the company as between it and its employees.

It was only a grade in relation of co-employee, and it is sufficient that he was competent for the place, which is not questioned. Brick v. R. N. Y. & P. R. R. Co., 98 N. Y., 211; Hofnagle v. N. Y. C. & H. R. R. R. Co., 55 id., 608; McCosker v. L. I. R. R. Co., 84 id., 77; Loughlin v. The State, 6 N. Y. State Rep., 826. He was a co-employee of the plaintiff. It was the duty of the defendant to use reasonable care in supplying its employees with suitable machinery, tools and appliances so that they might not unnecessarily be exposed to danger from their use in the service.

This it is contended on the part of the plaintiff the defendant failed to do, and that the injury of the plaintiff was the consequence of such negligence and caused wholly by it. The difficulty was in the engine and its apparatus. The alleged defective conditions were that the flues leaked, that the valves in the cylinder or steam chest leaked, that the throttle leaked and that the brake was out of repair and useless. There is evidence tending to prove that the condition of the engine and its machinery was impaired in the respects mentioned. The flues had leaked quite badly for some time, the consequence of which was, that it was difficult to keep up the fire so as to maintain the requisite quantity of steam to give the engine suitable operative power. This had been so for some time, and the attention of the train dispatcher had been called to it, but the engine had nevertheless been used upon a coal train between Rochester and Lyons with reasonable success, although such leakage had required increased labor to keep up fire to generate steam sufficiently to supply suitable motive power to run the train.

The only danger to be apprehended from such cause in the use of an engine is the liability of the reduction of steam pressure to such an extent as to render it difficult by means of the lever operating the valves to control the motion of the engine. The evidence tends to prove that this was one difficulty at and preceding the time of the accident. The engine was returning with only forty-five pounds of steam, and had not the power to stop on reversal of its force from a forward to a backward motion by the use of the lever. But although this day was the first time the plaintiff had run the engine he was advised of this leakage of the flues before he left Rochester in the morning, and observed it on his trip to Lyons. And on his return with a train of loaded coal cars the train was stopped on approaching an up grade, when the steam had got quite low and with the application of a blower was raised from sixty or seventy pounds to 125 or 130, a fair standard for the operation of an engine in drawing a loaded train, and the train was then without difficulty taken up the grade. It is evident that without continued care to keep up the > fire so as to overcome the leakage of water from the flues into the fire box, the leakage was liable to reduce the heat and diminish the steam and motive power of the engine. And to this may be attributed the reduction to forty-five pounds of steam at the time the engine was returning from the Y. to its place of destination. That quantity was sufficient for such purpose, although inadequate to the speedy control of its movement. This defect in the engine related to its operative power, and it was not dangerous in its use to those employed to operate it, but the supply and maintenance of the requisite motive power for its operation, and to overcome emergencies that might arise, required more than usual care and labor of the fireman. This was the apparent situation presented by this defective condition of the flues, which could as well be appreciated by an engineer running it as by any other person engaged in the business of the company.

The plaintiff was a locomotive engineer of some years’ experience. This difficulty was known to him when he took charge of the engine in the morning, and its extent and effect were observed by him on the trip and before his return with it to Eochester.

And so far as this particular defect contributed to the accident and injury it was within the hazards assumed by him. And the same may be said in relation to the leakage of the steam chest and throttle. Burke v. Witherbe, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Bajus v. S. B. and N. Y. R. R. Co., 103 id., 313; 3 N. Y. State Rep., 96. If it had not appeared by the evidence that the plaintiff knew of the useless condition of the brake on the engine before it was detached from the train and he undertook to take it to the Y after the return from Lyons, we should be inclined to think there was a question for the jury to say whether the use of it if in order may not have been effectually made to prevent the accident and injury to the plaintiff. But it appears that the plaintiff also knew the condition of the brake. The witness Sullivan says that the plaintiff went to the brake that morning, tried to turn it, and asked what was the matter with it and was informed that it was useless. He therefore knew that after it was detached from the train there was no means to be applied to retard the movement of the engine or to stop it other than the levers under his control, and in view of his profession and experience it cannot be said that he did not appreciate the situation or condition and the inconvenience that might arise from them.

The liabilibity of this engine to be subjected to loss of motive power so as not to enable the engineer to effectually use his levers to retard the motion of it as occasion might require, gave a greater necessity for a brake than otherwise might be supposed to exist for it. But the plaintiff having proceeded to run the engine with full knowledge and appreciation of the situation, the defendant is not chargeable to him for the consequences resulting from it. Powers v. N. Y., L. E. and W. R. R. Co., 98 N. Y., 274; Marsh v. Chickering, supra.

Eeference is made by counsel to Hawley v. N. C. R’y Co. (82 N. Y., 370) as asserting a contrary rule, but then it did not appear that the plaintiff knew how badly the road upon which he ran an engine and was injured was out of repair, and it was held that under the circumstances he was at liberty to rely upon the judgment of the officers under whose direction he ran that the road was in a condition of safety. We.do not see how that reason can be applied to the case at bar in support of the action.

The conclusion seems to follow that the motion for a new trial should be denied and judgment directed on the nonsuit.

Smith, P. J., and Haight, J., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    In the Matter of the Proof of the Last Will and Testament of Porter Austin, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887.)

    Wills—Execution of—Acknowledgment of testator’s signature— What is sufficient.
    The circumstances attending the execution of an instrument, offered for probate as the last will and testament of a decedent, as shown by evidence, were as follows: The instrument was written on a printed blank by the proponent’s counsel, who testified that he drew it according to instructions communicated to him by the person named therein as executor, and which such person testified were given to him by the deceased. The subscribing witnesses agreed in the statement that they went to the house of the decedent, having been called in to witness his will, that the paper was then lying on the table, that the decedent, on being asked if that was his last will and testament, said “Tes,” and that they then subscribed as witnesses in Ms presence and in the presence of each other. They also agreed in the statement that nothing was said, while they were in the room with the deceased, in reference to the execution of the will, except as above stated. They further testified that the deceased appeared, at the time, to be of sound mind and to understand what he was doing. Prom the testimony it appeared that the signature of the decedent preceded that of the witnesses. The attestation clause signed by them recited the execution of all the formalities required by the statute. Held, that in view of all the testimony there was sufficient evidence that the testator acknowledged to the subscribing witnesses the signature to be his, and that the faetum of the will was established.
    Appeal by Granger Griswold, proponent, from a decree of the surrogate of Livingston county, refusing probate of the instrument proposed as the will of said deceased.

      James Wood, for proponent and app’lt;- E. W. Packard, for contestants and resp’ts.
   Smith, P. J.

The proof shows that the paper purporting to be the will of the deceased, was signed by him, but the signature was not made in the presence of the subscribing witnesses, and it appears that the surrogate refused probate upon the ground that there is not satisfactory evidence that the decedent acknowledged to each of the attesting witnesses that the signature was made by him. The only question presented by the appeal is whether he was right in that conclusion.

The subscribing witnesses agree in the statement that they went to the house of the decedent, having been called in to witness his will; that the paper was then lying on the table, and the decedent on being asked if that was his last will and testament, said “Yes,” and that the witnesses then subscribed as witnesses in his presence and in the presence of each other.

They subscribed an attestation clause, which recited the execution of all the formalities required by the statute. The witnesses also agree in the statement that nothing was said while they were in the room with the deceased in reference to the execution of the will except as above stated. The will was written on a printed blank by Mr. Wood, the proponent’s counsel, who testified that he drew it according to instructions communicated to him by the person named in the will as executor, and which such person testified were given to him by the deceased; an inspection of the will which was produced before us on the agreement showed that the signature of the deceased was very prominent and plain to be seen. The witnesses wrote their places of residence after their signatures, and there is no evidence that they were advised of the necessity of doing so, except from reading the attestation clause; and they both testified that the deceased appeared at the time to be of sound mind, and to understand what he was doing. There is no express testimony that the signature of the deceased was affixed to the paper before the witnesses subscribed; the subscribing witnesses do not say it was not, and one of them testified that he knew the deceased did not sign the will after they got there. In view of all the testimony it may be assumed that the signature of the decedent preceded that of the witnesses, nothing appearing to the contrary.

Here, then, was a paper purporting to be the last will of the decedent, drawn in pursuance of his directions, attempted to be executed by him while he was apparently of sound mind and understanding, duly subscribed by him, and acknowledged by him to be his will in the presence of witnesses who attended and subscribed it at his request and in his presence, signing a full attestation clause. Must the will fail by reason of the lack of a formal acknowledgment by the testator to the witnesses, that the signature was his, such signature not having been made in their presence?

It is undoubtedly true that the several requisites prescribed by the statute must be complied with substantially in order to constitute the due execution of a will. The object of those requirements is to guard against imposition and mistake. But no formula of words is prescribed by the statute to be repeated by the testator. So far as the acknowledgment by the testator of his signature is concerned, if the signature is in fact his, if it is appended to the paper before the witnesses sign, if, the paper and the signature being before the witnesses in plain sight, the testator addresses them in words which are calculated and intended by him to give them to understand that the signature is his, and are so understood by them, these facts would seem to amount to an acknowledgment of the genuineness of the signature within the meamng of the-statute.

Baskin v. Baskin, 36 N. Y., 416, is an authority in point. There the testator produced a paper bearing his personal signature, requested the witnesses to attest it, and declared it to be his last will and testament, It was held that he thereby acknowledged the subscription within the meaning of the statute. Said Porter, J., delivering the opinion of the court, “ It is enough that he verifies the subscription as. authentic, without reference to the form in which the acknowledgment is made; and there could be no more unequivocal acknowledgment of a signature thus affixed than presenting it to the witnesses for attestation, and publishing the paper so subscribed as his will” (p. 419).

In the Matter of the Will of Higgins, one of the subscribing witnesses swore to the due execution of the will, but another witness (Jones) was not able to recollect that the testator acknowledged the signature to be his. On that point the court said : “We think that the testimony of Jones, who swore positively that the testator acknowledged the will to be his last will .and testament, was an acknowledgment of his signature, and sufficient, with the other evidence given by him, to establish a due execution of the will. The signature was plainly visible upon the instrument itself, and the testator having requested Jones, and Stokes to subscribe their names to it as witnesses, and he having acknowledged the same to be his last will and testament, the statute was fully complied with in this respect within the decisions of this court.” 94 N. Y., 554, 557.

To the same effect is the case concerning the Will of Phillips, 98 N. Y., 267. Hr. Justice Raparlo delivered the opinion of the court. Speaking of the case as made by the testimony of one of the subscribing witnesses, he said: “The exhibition of the will and of the testator’s signature attached thereto, and his declaration to the witness that it was his last will and testament, and his request to the witness to attest the same, were, we think, a sufficient acknowledgment of the signature and publication of the will.” (p. 273.)

The case last cited was followed by the general term of this court in the second department, in the? Matter of the Will of Hunt, 6 N. Y. S. R., 65.

The learned surrogate relied upon the cases of Mitchell v. Mitchell, 16 Hun, 97; S. C., affirmed, 77 N. Y., 596, Rutherford v Rutherford, 1 Den., 33, and Lewis v. Lewis, 11 N Y , 220.

In the case of Mitchell, there are some remarks in the opinion delivered at general term, which seem to sustain the decision of the surrogate But one fact was commented on in that case which distinguishes it from this, namely, that one of the subscribing witnesses did not see the testator’s signature. The case was affirmed in the court of appeals by a bare majority,' Rapallo, J., writing a dissenting opinion, in which two of his associates concurred,

In Rutherford v. Rutherford, the only declaration as to the nature of the paper, was that it was the testator’s “will or agreement,” which was held to be too indefinite, and as to one of the subscribing witnesses, the testator neither signed, nor acknowledged the signature, in his-presence.

In Lewis v Lewis the will was so folded when the wit nesses signed that they could not see whether it was subscribed by the testator or not, and the only acknowledgment made to them by the testator was, “I declare the within to be my will and deed " It was held not to be a sufficient acknowledgment by the testator either of his subscription, or that the instrument was his will.

We think the cases cited by the surrogate are fairly distinguishable from the case in hand, and that the later cases already referred to control, and require a reversal of the decree.

All that we decide is, that in view of all the testimony, there was sufficient evidence that the testator acknowledged to the subscribing witnesses the signature to be his, and that the factum of the will was established. If there are any other questions in the case, they are still open.

The decree should be reversed and the proceedings remitted to the surrogate’s court, the costs of this appeal to abide the event; if awarded against the proponent, -to be payable out of the estate; if in his favor, to be payable out of the-estate, or by the contestants, as the surrogate shall direct. Code, § 2589.

Haight and Bradley, JJ., concur


text:
    People ex rel. Mary B. Hill, App’lts, v. Howard B. Crissy, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887).

    Schools—Cornell University—Free scholarship—Who entitled to— Laws 1865, chap. 585, § 9, as amended by laws 1872, chap. 654.
    A normal school is not a public school within the meaning of the statute providing for the selection of the best scholar “from each academy and each public school ” in the respective counties and cities of this state, as a candidate for a free scholarship at Cornell university.
    Appeal from an order of the Erie special term denying a motion for a mandamus.

      N. H. Hill, for app’lt; I. 8. Lambert, for resp’t.

       See People ex rel. Hill v. Wicks, 1 N. Y. State R., 604.

   Smith, P. J.

Section 9 of the act establishing Cornell university (Laws 1865, chapter 585), as amended (Laws 1872, chapter 654, Laws 1886, chapter 614), provided for the admission to said university, for free instruction, of one student from each assembly district, annually to be selected as therein provided. By the terms of the section, as amended by the acts referred to, the power of selection was vested in the school commissioner or commissioners of each county and the board of education in each city, and in performing the duty they were required to select ‘ the best scholar from each academy and each public school of their respective counties or cities as candidate for the university scholarship. ” They were then to examine the persons so selected and determine which of them were “the best scholars,” and to certify the two highest candidates, the first of whom should be admitted to the university as provided in the act, and so many of the second as the trustees of the university, m their discretion, should admit, not exceeding the full number for the class of each year.

It appears from the appeal papers that in the year 1866, the school commissioners of the county of Chautauqua made no selection of candidates for examination, but, instead of doing so, gave notice by publication in certain newspapers in the county, that at a time and place therein specified, they would examine such persons as should attend for that purpose, and determine to whom the scholarship for that year should be awarded. The county of Chautauqua is divided into two assembly districts, and is entitled to two scholarships each year, under said statute. An examination was held pursuant to such notice, and six persons appeared as candidates and were examined. Among them were Herman L. Gifford, who was determined to be the best scholar, Howard B. Crissey, one of the defendants, the second, and the relator, Mary B. Hill, the third. The relator contends, among other things, that said Howard B. Crissey was not eligible to such scholarship, by reason of the fact that he was a student in the state normal and training school at Fredonia, and not of any other school or academy, and that such normal school is not one of the “public” schools of the county within the meaning of the acts referred to. That contention presents the only question which we propose to consider

We are inclined to the opinion that by the words public schools,” the legislature intended “common” schools, only, and that “normal” schools were not included. It is true that, in an enlarged sense, normal schools are public schools, inasmuch as any citizen of the state possessing the requisite qualifications, and being selected as provided by law, may be admitted to them. In the same sense colleges are public schools, but clearly they are not embraced in the act. The object of normal schools is to give instrucsion in the art of teaching. The distinctions between them and the common schools are marked. They have been defined by the court of appeals, as follows: “These normal schools differ materially from the common schools to which the constitution refers. They are not intended for the education of the children of the inhabitants of the districts where they are located, but for the training of teachers for all common schools. They areznot open to all, but only to such as may be selected at times, and in the manner prescribed by the superintendent of public instruction. Each part of the state is entitled to its due representation. Applicants for admission are required to possess certain qualifications, which must be tested by preliminary examination.” Gordon v. Cornes, 47 N. Y., 616.

Normal schools were in existence in this state when the act of 1865 was passed, the first having been established in 1844. Laws 1844, chap. 311. It is to be presumed that if they had intended by the act, they would have been named. That the legislature regarded tlie term, “public schools,” as not embracing academies, is evident from the fact that academies were specially mentioned. What reason is there for supposing that the term was intended to embrace normal schools, and not academies?

A practical construction has been given to the act of 1865 that favors the relator’s contention. In December, 1867, the superintendent of public instruction issued a circular to the general school commissioners and supervisors in the state, calling their attention to the act, and urging them to make efforts to fill the scholarships created by it. In the circular he stated that the candidates were to be selected from all the academies and “common” schools of the state. He evidently regarded the term “public schools” used in the act as synonymous with “common schools.” Code of Public Instruction, 1868, p. 490. In 1869, the regents of the university made a report to the legislature upon a subject specially referred to them, in which they used the terms “public schools’’and “common schools” indiscriminately. Historical Record of University of New York, 1885, p. 71.

In numerous reported decisions of the court, the terms referred to are used as synonymous. Instances of such use are found in Dallas v Fosdick (40 How., 249), and in the recent case of People ex rel. King v. Gallagher (93 N. Y., 438), not to cite others. The latter case arose under Laws 1850, chapter 143, in which act the like use of the terms m question, is made by the legislature. It is entitled an act to ‘ ‘ reorganize and regulate the common schools, and the board of education in the city of Brooklyn,” and its second section provides, that “the board of education shall have the entire charge and direction of all the public schools of said city, * * . * and shall possess the powers and be subject to the general duties of trustees of common schools in this state.” And in other instances, the act uses the terms referred to indiscriminately.

One object of the act of 1865, in providing for free scholarships in Cornell, was to furnish an incentive to pupils in the academies and public schools to strive for as high a degree of scholarship as those schools could afford. But that incentive would be greatly lessened if they were subjected to competition with students enjoying the more favorable opportunities and the higher grade of instruction furnished by the normal schools.

It can hardly be supposed that such competition was intended by the authors of the act. The force of this consideration is not impaired by the fact that there have been, and still are, teachers’ classes in the academies, the members of which are possibly eligible as candidates for the Cornell free scholarships, within the letter of the act. Whether the students of that class were intended to be made eligible may be questionable, but, even if they were, it does not follow that students in the normal schools were intended to be included. The normal schools were established because the need was felt of a higher grade of instruction and better opportunities for learning the art of teaching than were or could be furnished to teachers’ classes in the academies.

But the question seems to have been put at rest by the action of the legislature at its late session. Chapter 291 of the Laws of 1887 further amends section 9 of the act of 1865,. and it shows very clearly that by the words “public schools” used in the act, the “common” schools, and those only, were intended. After providing, in the language of the original act, that the free instruction provided for shall be accorded to the students selected, “in consideration of their superior ability and as a reward for superior scholarship in' the academies and public schools of the state,” if goes on to enact that “none but pupils of at least sixteen years of age, and of six months’ standing in the common schools or academies of the state, during the year immediately preceding the examination, shall be eligible.” This not only prescribes a clear rule for the future but it seems to be an express legislative definition of the term " public schools ” as used in the original act and its several amendments.

If these views are correct, it follows that the defendant Orissy was not eligible, and that the relator was entitled to the second certificate.

The order appealed from should be reversed, and the motion for a mandamus granted, but without costs of the appeal, as the question is new, and one of public interest, and the commissioners appear to have acted in good faith.

Haight and Bradley, JJ., concur.


author: Clement, Ch. J.

text:
    Ira Leo Bamberger, Resp’t, v. Herman Duden, App’lt.

      (City Court of Brooklyn, General Term,

      Filed February 28, 1887.)

    Reference—Attorney’s bill for services referable.
    There is no legal reason why a bill for services by an attorney should not be referred.

      Ira Leo Bamberger, respondent in person; Blumenstiel & JSirsch, for app’lts.
   Clement, Ch. J.

The plaintiff in this case is an attorney and counsellor at law, and seeks to recover about $14,000 for professional services alleged to have been rendered the defendant in sixteen actions and proceedings. The defendant, by his answer, denies generally that the services claimed for in the complaint were rendered, and also their value, but admits, with qualifications, that the plaintiff was retained by defendant, and that certain services were rendered, and sets up that there was a contract in each case as to the charge, and further alleges that the plaintiff has been overpaid.

The plaintiff moved at special term for a reference, which motion was granted, and defendant has appealed from such order.

If there was but one question in this case to be tried, viz.: whether plaintiff was entitled to the full amount claimed or nothing, then perhaps the case should not have been referred; but the plaintiff sues for services in sixteen matters on the quantum meruit and will be compelled to prove the value of sixteen distinct items.

The retainer is not admitted except in a qualified way, and the. plaintiff will have to prove the second paragraph .of the complaint, which is squarely denied in the answer.

We can see no legal reason why a bill for services by an attorney should not be referred.

If the objection is a good one that a lawyer should not pass on the bill of another lawyer, then the same objection could be taken to the judge who presided at the trial before the jury.

We are of opinion that the order of reference was properly granted.

Order affirmed, with ten dollars costs and disbursements.

Osborne, J, concurs.


text:
    Ira Leo Bamberger, Resp’t, v. Herman Duden, App’lt.

      (City Court of Brooklyn, General Term,

      Filed February 28, 1887.)

    Attachment—Amount oh undertaking on—Code Crv. Pro., § 589.
    On an order of arrest a plaintiff is required to give an undertaking at least equal to one-tenth of the amount of bail required and not less than $250, and while this provision is not included in the section fixing the amount of security required on an attachment, yet it furnishes a proper rule by which to determine the amount of an undertaking on an attach • ment when the warrant has been levied and where the defendant seeks further security.

      Ira Leo Bamberger, respondent in person; Blumenstiel & Hirseh, for app’lt.
   Clement, Ch. J.

This action was brought to recover the sum of $14,200, and an attachment was obtained against' the defendant as a non-resident, who thereupon deposited with the sheriff: $20,000 in order to be relieved from the levy. The plaintiff in obtaining the attachment furnished an undertaking in the sum of $250, and the defendant moved, at special term, that the plaintiff be compelled to give further security, which motion was denied, and from such order this appeal is taken.

The costs and disbursements of the action, including referee’s fees, may reach the sum of $1,000, and if the defendant succeeds on the trial such costs would exhaust the amount of an undertaking for that amount and the defendant would have no remedy for any other damages, sustained by him. The costs of the action, if paid, are to be deducted from the amount for which the sureties are liable on the undertaking. Baere v. Armstrong, 26 Hun, 19. It would seem proper that the plaintiff should secure the defendant for his costs and for any other damages beyond the question, and particularly in this case, where the plaintiff does not claim that he is unable to furnish further security.

On an order of arrest the plaintiff (Code Civ. Pro., § 589) is required to give an undertaking at least equal to one-tenth of the amount of bail required, and not less than $250, and while this provision is not included in the section fixing the amount of security required on an attachment, yet it furnishes a proper rule by which to determine the amount of an undertaking on an attachment where the warrant has been levied and where the defendant seeks further security.

If the plaintiff obtains judgment in this action, no injury will be done him by reason of the fact that he has given adequate security to the defendant; and if the defendant is successful, he will have a certainty that he will suffer no loss by reason of the fact that an attachment was wrongfully issued against him.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs, and the amount of the new undertaking to be given is fixed at the sum of $1,400 in lieu of the undertaking already filed.

Osborne, J. concurs.


author: Clement, Oh. J.

text:
    William H. Bentley, Resp’t, v. Cornelius R. Colyer, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 29, 1887.)

    Lien—Of stable-keeper—Replevin—When notice of lien ineffectual—Laws 1872, chap. 498, as amended by Laws 1880, chap. 145.
    Where plaintiff, on June 23, 1886, began an action of replevin against defendant, a stable-keeper, to recover possession of a mare and harness, and the sheriff having replevied the same, left them temporarily in defendant’s stable, and thereupon on the next day defendant, with the intention of acquiring a lien upon the mare, served the notice specified in chap. 498, Laws 1872: Held, that service of such a notice after action commenced, though the mare was still in defendant’s stable, was a nullity, and no defense to the action.

      Gilbert D. Lamb, for pl’ff; D. B. Thompson, for def’t.
   Clement, Oh. J.

This action was brought to recover the possession of a horse and a set of harness, and was commenced by the process of claim and delivery, and on June 23, 1886, the property under such process was taken by the sheriff of Kings county into his possession. The sheriff left the property with the defendant, who gave his receipt therefor. On the subsequent day the defendant served on the plaintiff a notice of hen for charges for the board of the horse pursuant to chapter 498, Laws 1872, as amended by chapter 145, Laws 1880.

On June 9, 1886, the plaintiff received a notice of lien from the defendant, which is conceded not to have been a compliance with the statute.

The plaintiff shortly, after the service of the first notice, saw the defendant, but the parties were unable to agree upon a settlement.

After the commencement of the action, the defendant having ascertained from his attorney that the notice already served was unavailing, served the new notice, which was in conformity to the statute.

We are of opinion that under the second notice the plaintiff acquired no lien. The horse was not at that time, in law, in his possession.

While as a matter of fact the horse had not left the stable, yet by giving the receipt to the sheriff, his possession as bailee of the plaintiff had ended. The horse had been taken from the defendant by process of law, and was in custodia legis, and the defendant could acquire no lien for keep except as against the sheriff; if he failed to pay the charges from .and after June 23, when the defendant received the horse from the sheriff.

The defendant as receiptor to the sheriff had no interest in the property, but was a mere servant of the sheriff. Dillenback v. Jerome, 7 Cowen, 294.

After property was taken by virtue of a writ of replevin, it could not be distrained for rent. Milliken v. Seley, 6 Hill, 623.

In a recent case in the court of appeals. First National Bank of Oswego v. Dunn (97 N. Y., 149), it was held that a judgment creditor could not interfere with property which was in the custody of the law, because he could only claim through the title of the debtor, and the property had been taken from the debtor’s possession.

Other authorities could be cited, but the point seems clear that the defendant when the process of claim, and delivery was executed, had no lien for keep and could not thereafter obtain a lien by serving a notice. -

The case of Eckhard v. Donohue (9 Daly, 214), has no application to the facts of this case, as the defendant had two weeks after a demand to serve his notice of lien.

The defendant made a mistake in his notice, and must suffer the consequences.

The question of ownership was submitted to the jury properly, and the charge on that point was a correct statement, of the law.

It becomes unnecessary to consider the other points in the case.

Judgment and order denying new trial affirmed, with •costs. Osborne, J., concurs._


author: Van Wyck, J.

text:
    Margaritha Schaeffer, App’lt, v. Joseph Oppenheimer, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed April, 25, 1887.)

    Indecent assault—Action foe—Evidence of good chaeactee—Admissibility.
    In an action to recover damages for an alleged indecent assault by defendant upon plaintiff, whereby she became pregnant and gave birth to a child, evidence of the good reputation of the plaintiff, is not admissible, where her character has not been assailed generally, but only by proof of particular acts of misconduct.

      Baldwin F. Strauss, for app’lt; Anthony Barrett, for resp’t.
   Van Wyck, J.

This is an action to recover damages for an alleged indecent assault by defendant upon plaintiff, whereby she became pregnant and gave birth to a child. The verdict was in favor of defendant. Plaintiff appeals from the order denying motion for new trial on the minutes and from the judgment embraced in the verdict. The motion for new trial was properly denied, the evidence overwhelmingly sustains the verdict. Quite a number of exceptions appear in the case, and none of these, save one, seem to require our consideration for the rulings, to which they were taken are clearly correct according to the well-settled rules of evidence. This one we will specially refer to as counsel in his argument expressed considerable confidence in it.

At the close of plaintiff’s testimony in rebuttal, the coun sel made in the most general terms an offer to prove that plaintiff “has a good reputation,” the objection to which was sustained and an exception was duly taken. This offer was too general to base errors upon. It in no way indicated, whether the intention was to prove plaintiff’s reputation good for honesty, veracity, sobriety, chastity or charity.

It did not appear that the offered proof was in rebuttal of any new matter brought out on defendant’s case. Even if the offer had been to show her reputation good in any one of these respects it would not have been admissible for her general character had not been attacked in any one of these respects and was not in rebuttal of anything brought in the defense. It is true defendant denied on the witness stand her statements and proved by several witnesses their carnal intercourse regularly with plaintiff for more than a year prior to the birth of the child which she charged to defendant’s alleged assault. But her general character for either veracity or chastity, or in any other respect was not impeached and the offer was properly excluded. Starks v. People, 5 Denio, 106; Pratt v. Andrews, 4 N. Y., 493; People v. Gay, 7 id., 378.

We think the judgment and order should be affirmed with costs.

Osborne, J., concurs.


author: Osborne, J.

text:
    Amelia Teresa Bieling, Appl’t, v. The City of Brooklyn and Ripley Ropes, Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1887.)

    1. Negligence—Municipal cobpobations—Brooklyn—Awnings—Liability of commissioner of city works—’Charter—Exemption clause —Laws 1881, chap. 457, sec. 1.
    In an action brought to recover damages for injuries sustained by the plaintiff by the falling of a wooden awning upon her, while walking along a certain street of the defendant city. The defendant Ropes being at that time commissioner of city works. The awning as constructed, was not a legally authorized structure and covered the entire sidewalk. Fkld, that under Laws 1881, chap. 457, sec. 1, subd. 1, which amended the exemption clause in the city charter of Brooklyn, the defendant Ropes, was not liable.

      2. Same—When city liable.
    It appeared that the duty of preventing the erection of the awning in question and of removing it when erected as a nuisance in a public street, was a divided duty, and devolved by the charter, not alone on a subordinate of the department of public works but also on the police force., Held, that therefore, there was no officer or officers of the city against whom a remedy for non-feasance could be had, and that if none of the city officers were liable the remedy was against the city upon its primary obligation to keep its streets in a safe condition. Following Fitzpatrick v. Stoeum et al., 89 N Y„ 858.
    3. Same—Awnings—When a nuisance.
    Such a structure made for private purposes if unauthorized is an encroachment upon the public street, and a nuisance especially if constructed so negligently as to be dangerous to persons passing under it.

      F. P. Bellamy, for app’lt: A. F. Jenks, Jr., for city; Taylor & Ferns, for Resp’t, Ropes.
   Osborne, J.

Plaintiff brings.this action to recover damages for injuries which she sustained on December 26, 1882, while walking along Court street in this city by the fall upon her of a wooden awning. . The defendant Ropes was at that time, and had been for some years prior thereto commissioner of city works.

It appears from the testimony given on the trial that the awning in question consisted of a board roof covering nearly the entire sidewalk, supported by rafters resting at one end on posts inserted near the curb, and fastened at the other end by nails driven obliquely, or “toe-nailed ” on to the face of the cornice attached to the front of the building. This awning had been erected some years previously, and there was testimony given on the trial tending to show that it was. improperly secured to the cornice, being only “toe-nailed” instead of being let into the wall of the building, and that the defects in its construction were patent and might have been readily detected. Prior to the accident there had been an accumulation of snow on the awning, and the policeman on the beat on the day of the accident had notified the keeper of the store over which this awning was built to remove the snow from the awning; the store-keeper failed to do this, -and it is claimed that the accumulation of snow caused the awning to give way where it was “ toe-nailed ” to the building, and produced the injury to the plaintiff who was passing along at the time, to recover damages for which this action was brought.

The ordinances of the city then in force relating to awnings were put in evidence on the trial, from which it appears that only cloth or canvass covered awnings were permissible.

At the close of the plaintiff’s case, counsel for the city moved to dismiss the complaint on the grounds that plaintiff had failed to show any negligence imputable to the city, and that the city was relieved from any liability under what is known as the “ exemption clause” in the charter.

Counsel for the defendant Ropes also moved to dismiss the complaint as to his client on the ground that there was no evidence showing negligence on the part of Ropes or his subordinates, and also on the ground that said defendant was relieved from liability under the provisions of chapter 457 of the Laws of 1881.

The motion was granted by the learned trial judge as to the defendant the city of Brooklyn on the ground that ‘ ‘assuming that there was negligence on the part of the police, or the inspectors in allowing the awning to be erected and to be kept up,” the city was relieved from liability under the exemption clause in the charter, and as to defendant Ropes on the ground that in the absence of personal negligence on his part, he was exempted from his liability under the provisions of said chapter 457 of the Laws of 1881.

From the decisions granting the motions and the judgments entered thereon plaintiff brings this appeal.

In the case of Hume v. The Mayor, etc., of New York (74 N. Y., 264), which was a case of a similar character to this, the court of appeals say (p. 270), “ On the part of the plaintiff it is claimed that the structure in question (a wooden awning) was an unlawful encroachment upon the public streets, obviously dangerous to travelers and a nuisance which it was the duty of the city, after notice express or implied, to remove, in pursuance of its general duty to keep the streets and highways in repair and in safe condition for travel. Regarding the structure as unauthorized by the city, it is denied on the part of the defendant that it constituted a defect in the street which it fell within the scope of the duties of the city to remedy. The duty of the city to keep the streets, etc., in such repair that they may be safely traveled, and its liability to respond in damages to any person injured by its neglect so to do, are not questioned and are too well settled by authority to need discussion. (Citing cases.) * * *

“ In the present case the erection called an awning was in fact a permanent roofing of boards over the entire sidewalk, resting against the building and supported on the outside by wooden posts bedded in the ground near the curbstone, thus converting that portion of the street into a covered way. It is obvious that such a structure made for private purposes, if unauthorized is an encroachment upon the public streets, and a nuisance especially if constructed so negligently as to be dangerous to persons passing under it.”

Taking the above as the law applicable to the facts of the present case, and there being no pretense that the awning in question was a legally authorized structure, we are of the opinion that in the absence of the exemption clauses above referred to, there was ample testimony to go to the jury on the question of the liability of the defendants.

This brings us to the real question in the case, to wit, how far the said exemption clauses; so called, relieved the defendants or either of them from liability.

First. As to the defendant Ropes who was the commissioner of city works.

Section 1, subdivision 1, of chapter 457 of the Laws of 1881, relating to the city of Brooklyn, provides among other things as follows:

“ Heads of departments and officers of said city shall not be liable to third parties for misfeasance or nonfeasance of any person appointed by or subordinate to them.”

This statute was enacted as an addition or amendment to Section 27 of title 19 of chap. 863 of the Laws of 1873 (being the city charter), constituting the so called exemption clause” which provides as follows:

The city of Brooklyn shall not be liable in damages for any misfeasance or nonfeasance of the common council or any officer of the city or appointee of the common council, of any duty imposed upon them, or any or either of them by the provisions of this act or of any other duty enjoined upon them or any or either of them, as officers of government, by any provision of this act, but the remedy of the party or parties aggrieved for any such misfeasance or nonfeasance shall be by mandamus or other proceeding or action to compel the performance of the duty or by other action against the members of the common council, officers or appointee as the .rights of such party or parties may by law admit, if at all.”

The defendant Ropes was the head of the department of city works and by the charter an officer of the city. What his liability might have been under the last quoted section 27 of the city charter, in the absence of the act of 1881, we need not now consider. But even if the act of 1881 had not been passed we hardly think it would be seriously contended that it was the duty of the commissioner of public works from time to time to personally inspect upwards of 500 miles of streets in order to discover whether obstructions or encroachments existed. •

By the charter, it is provided that there shall be certain bureaus in the department of city works, the chief officers, subordinates and employees of which shall be appointed and removed at pleasure by the commissioner of city works, Vide title 14, § 3 of the charter.

Title 14, sec. 3, subd. 5 of the charter, further provides that there shall be a bureau having the care and charge inter alia “of keeping the streets, avenues and places free and clear of all encroachments, obstructions and incumbrances, * * * the erection of awnings, the chief of which shall be called the ' superintendent of streets.’ ”

If there was misfeasance or nonfeasance anywhere in the department of city works, in suffering the awning in question to be erected and remain, it was clearly the misfeasance of the superintendent of streets, on whom the duty was imposed of keeping the streets free and clear from obstructions and encroachments, and of supervising the erection of awnings, he, as appears from the extracts from the charter above quoted, was not an officer of the city; the most that could be claimed for him was that he was an officer, clerk or subordinate of a department of the city government, appointed and removable by the head of the department, he was a person appointed by and subordinate to the defendant Hopes, as the head of a department of the city, and the defendant Hopes is exempted from any liability for his misfeasance or nonfeasance by the act of 1881.

By the charter (title 14, sec. 1, subd. 5), the commissioner of city works is vested with the care of public buildings, and by virtue of the authority so vested in him, he appoints the keeper of the municipal building. In Vincent v. The City of Brooklyn, (31 Hun, 122), the city was held liable for the damages occasioned by the explosion of gas in that building, which occurred through the negligence of the keeper. We can see no stronger reason why the commissioner of city works should be exempted from liability in that case and the liability placed on the city than in the case before us.

We are therefore of the opinion that the nonsuit was properly granted as to the defendant Hopes, and the judgment as to him should be affirmed.

Second. As to the defendant The City of Brooklyn.

The exemption clause above quoted exempts the city from damages for the misfeasance or nonfeasance of the common council or any officer of the city or appointee of the common council, of any duty imposed upon them, or any or either of them, by the charter, or of any other duty enjoined upon them, or any of them, as officers of government,-by any provisions of the charter.

We are of the opinion that this so-called exemption clause should be strictly construed. Can it be truly said that the erection and maintenance of the awning in question was an act of misfeasance or nonfeasance of the common council? Clearly not.

As we have shown above in considering the case against the defendant Hopes, the erection and maintenance of the awning was not an act of misfeasance or nonfeasance on his part as an officer of the city, nor did the keeping of the streets clear from obstructions and encroachments and “the erection of awnings,” come within the. scope of duty of any “appointee of the common council,” that, as above stated, was the duty of the superintendent of streets, “ a person appointed by and subordinate to ” the commissioner of city works. Nor was it his sole duty. By title 11, sec. 24 of the charter, it is made the duty of the police force of the city, among other things, “ to remove all nuisances in the public streets,” and also “to enforce and prevent the violation of all laws and ordinances in force in said city.”

It thus appears that the duty of preventing the erection of the awning in question, and of removing it when erected as a nuisance in a public street was a divided duty, devolved by the charter, not alone on a subordinate of the department of public works but also on the police force. Rehberg v. The City of New York (91 N. Y., 137), was an action for damages for injuries sustained by the fall of a pile of bricks on the street exceeding the prescribed height in violation of the city ordinances, the city charter provided for a bureau of encumbrances within the department of public. works and chief officer of such bureau, whose duty it was to remove encumbrances; the police force of the city were also charged with the duty of removing nuisances existing in the public streets and of enforcing the city ordinances. In that case the court held that notice to the policeman of the unlawful character of the obstruction was notice to the city and it is chargeable with any neglect on his part.

In Fitzpatrick v. Slocum et al., (89 N. Y., 358), the court says, in reference to the claim, that the city cannot be held liable under the terms of the exemption clause, “we are of the opinion that the exemption created by this section is not so broad as claimed. There must be a remedy in such a case where one is injured without fault of his own by a defect in one of the streets or bridges of the city either against the city or some one of its officers. The primary duty to keep its streets and bridges in .safe condition rests upon the city, and there is a general obligation upon it to use proper care and vigilance in putting and keeping its streets and bridges in such condition, and unless that duty has been plainly devolved upon some officer or officers of the city against whom a remedy for non-feasance can be had, the remedy is against the city upon its obligation. That section does not exempt the city from liability to discharge a duty resting upon it and which it has not devolved upon any one of its officers.”

Here as we have seen the duty in question was not plainly devolved upon any officer of the city, but was devolved as well on the superintendent of streets as on the police force.

The charter of the city of Binghamton exempts the city from liability for the negligence of any officer or officers, agent or employee elected, appointed or employed pursuant to its charter- and authorized an action to be brought against the officer guilty of negligence only in case of wilful or gross neglect or intentional violation of duty. In Fitzgerald, administratrix, etc., v. The City of Binghamton (40 Hun, 332), plaintiff sued for damages for the death of her intestate, caused by his falling from an embankment running along one of the defendant’s streets, defendant claimed exemption on the ground that the negligence, if any, was that of the common council and Mayor who were by its charter made commissioners of highways for said city. The court held the following- Fitzpatrick v. Slocum et al.. (supra) that as the plaintiff could have no remedy unless the defendant was held liable, she was entitled to maintain the action.

In Fitzpatrick v. Slocum et al., the court further say: “If the commissioners of city works are not liable as we hold they are not and if there is no remedy against the police commissioners for not ¡appointing and keeping at this bridge sufficient keepers (and we. are also inclined to think a remedy against them would fail), then the remedy is against the city upon its primary obligation to keep its streets and bridges in a safe condition; and for not guarding this bridge sufficiently when it was operated for public use.”

So in this case we say if the commissioner of city works is not liable, and if there is no remedy against the police commissioner for the failure of the police to remove this awning as a nuisance in the public streets (and we are inclined to think a remedy against him would fail), then the remedy is against the city upon its primary obligation to keep its streets in a safe condition for public use by travelers.

W e are therefore of opinion that the learned trial judge erred in dismissing the complaint against the city of Brooklyn and the judgment in its favor dismissing the complaint should be reversed with costs to abide the event.

Judgment as to the defendant Ropes affirmed, with costs.

Judgment as to the defendant, The City of Brooklyn, reversed and a new trial granted, costs to abide the event.

Clement, J., concurs.


text:
    Pauline Preiss et al., App’lts, v. Le Poidevin, etc., Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1887.)

    Deed—Executed by a party under another name—Personally liable on warranty.
    Where W., defendant's testatrix, in the name of and pretending to be R., had granted and warranted realty of R. to the grantor of plaintiff’s deceased husband and ancestor, who died intestate, leaving plaintiffs in possession, and plaintiffs were evicted by R. Held, upon demurrer (1), while W. could not be held as principal to the deed, upon the theory of acting as agent without authority, as to the deed, W.’s name was R., the law looking to the individual and not to the name; and Held (2), that the covenant of warranty ran to plaintiffs, and was broken upon their eviction.

      Leopold Leo, for app’lt; Joseph Bartlett, for resp’ts.
   Van Wyck, J.

This is an appeal from an order sustaining demurrer of defendant to the complaint, on the ground that it does not state sufficient facts to constitute a cause of action, and from the judgment entered on said order. The facts alleged in the complaint are that Margaret Ann White, the defendant’s testatrix, on July 15, 1873, conveyed certain premises, the property of Elizabeth C. Roberts, in the name of and pretending to be said Elizabeth 0. Roberts, but without her authority, to James Merryman, by deed, containing the covenants of warranty and for quiet enjoyment, and thereafter, on December 10, 1874, James Merryman made and executed a deed of said premises, with the covenant of warranty, to Fritz Schad, who died on July 15, 1875, .intestate, leaving him surviving Pauline Preiss, plaintiff (then Pauline Schad), his widow, and three children, the infant plaintiffs.

Subsequent to the death of Fritz Schad and while the plaintiffs were in possession under above grants, they were, on August 2, 1884, ejected and evicted from said premises by the sheriff of Kings county, under and by virtue of a judgment in favor of Elizabeth C. Roberts, in the supreme court, in an action against Pauline Preiss, for the recovery of said premises.

This appeal presents for our consideration two points:

First. Did Margaret Ann White, by representing to James Merryman that her name was Elizabeth C. Roberts, and executing to him a deed of the premises under her then assumed name of Elizabeth 0. Roberts, make it her own deed and become liable on the covenant of warranty therein F

Second. Does the breach of a covenant of warranty, by the legal eviction of the heirs of a grantee to whom a deed with this covenant was made by the grantor, who was the grantee in a deed with like covenant made by his grantor, give a cause of action for such breach to such heirs against the-grantor in the deed first executed F

We will consider these two propositions in the above order. The counsel, on their oral argument and printed points on this' appeal, seem to rest the liability or non-liability of Margaret Ann White on the covenant contained in the deed she executed to Merryman under the assumed name of Elizabeth C. Roberts, on the theory that she assumed without authority to act as the agent of the person bearing the name that she assumed in the execution of this deed; the appellant insisting that she became the principal, and liable on the contract itself; the respondent insisting that she did not thereby make the deed her contract, but was liable only in action for damages on the ground of fraud.

The early cases in this state substantially hold that a person who seals a bond or makes a contract as attorney for another, without authority, is personally liable as if he had contracted in his own name as principal. And this conclusion, was reached in some of these cases through an artificial reasoning that where one signed the name of his pretended principal and his own name under it as agent, the principal’s name being signed without authority should be stricken out as surplusage, which would leave the instrument signed by the pretended agent alone, and thus he would be the principal. Dusenbury v. Ellis, 3 John. Cases, 70; White v. Skinner, 13 John. Rep., 307.

But at a later period this doctrine was questioned, and finally the broadness of the rule was greatly modified. In Walker v. State Bank (9 N. Y., 582), Judge Selden states that in England and some of the other states that one “ executing a contract as agent, without authority, is held liable, not upon the contract itself, but in an action on the case for damages.”

In White v. Madison (26 N. Y., 117), Judge Selden, writing the opinion of the court, says that the authority of Dusenbury v. Ellis has been somewhat shaken by the opinion in Walker v. State Bank; and in England and in several of the states that the principle that the unauthorized agent is liable on the contract itself has been substantially repudiated, citing English and American authorities to sustain the declaration, and affirms the principle that where one executes a contract as an agent for another, “he warrants his authority,” and that an action on such warranty of authority is appropriate where the agent has no authority to make the contract.

In Dung v. Parker (52 N Y , 494), Judge Andrews says “ There was a diversity of judicial opinion as to the form of action” against one who assumes to act for a principal without authority and draws another into a contract upon such assumption “ The earlier cases in this state allowed the defendant to be charged m an action of assumpsit, upon the contract, treating the assumed agent as principal.” The later decisions seem to regard the liability, in the absence of fraud, as resting upon an implied warranty by the agent of his authority to make the contract into which he entered. “If the act of the agent was fraudulent an action for deceit is a concurrent remedy.”

In Baltzen v. Nicolay (53 N. Y., 469), the court affirms; “the later and better considered opinion seems to be that his (unauthorized agent’s) liability when the contract is made in the name of his principal rests upon an implied warranty of his authority to make it, and the remedy is by an action for its breach.”

From this fine of decisions Margaret Ann White cannot be held liable on the covenants themselves in the deed to Merryman on the theory suggested by appellant that she assumed to act as the agent of Elizabeth 0. Roberts without authority, and thereby made it her deed and its covenants her covenants.

The plaintiffs in this action have been wronged and damaged by Margaret Ann White, and they should be sustained in the effort to secure redress from her estate, if it can be done without violating well settled precedents. It seems that an action against White, or her personal representative, would not lie in favor of these plaintiffs on a breach of implied warranty of her authority to act for Roberts, or an action on the case for deceit in fraudulently representing to Merryman that she had such authority; but these forms of action would only lie in favor of Merryman to whom the false representation of agency was made, or to whom she warranted her authority; and he has suffered no loss, for he sold the land to Fritz Schad, and received from him all he paid for it, and Schad’s heirs alone have been damaged by the act of White.

Did White fraudulently represent herself to be agent of Roberts or warrant her authority as such agent? We think not. She claimed to be acting for herself and to execute the deed for herself, and not as the agent of Roberts, though she did so under a name which some one else bears, and though she herself was known most generally by the name of White.

The courts have held that a person can have two names. Can one contract with another under a name she represents to be her name, and then avoid liability on the contract when her identity is unquestioned, by claiming that the name she held out to be her own was not the name by which she was best known to the world? Admitting that she was known by the assumed name to the contracting party by her own representation to him, we think the name under which she contracted was her name for the purpose of the contract, and she is estopped from denying or repudiating the same for the purpose of relieving herself from the obligations of the contract and- covenants made by her under such name. There is nothing so sacred in a name that right and justice should be sacrificed to its sanctity

There is nothing in the law prohibiting one from taking another name if he desires, and contracting under the name he may choose to assume. Does any length of time have to transpire before the person contracting under the name he chooses and introduces himself to the other contracting party before he is obligated by the terms of the contract ? We hardly believe the courts are called upon to deal in such refinement, if by so doing solemn contracts are avoided and great wrong worked. “The law only looks to the identity of the individual, and when that is clearly established the act will be binding upon him. (Petition of John Snook, 2 Hilton, 566; England, assignee, v. The N. Y. Publishing Co., 8 Daly, 375).

It has been held that a judgment against A. Jones establishes a lien against Abel Jones if the identity of one with the other is proven (Jones Estate, 27 Penn., 336).

A note signed Robinson Dashfield Prettyman will sustain an action thereon against Dashfield B. Prettyman if identified as the same person (Prettyman v. Waples, 4 Harring. 299).

To establish title to land John Whatson can be shown to be John Watson (Toole v. Peterson, 9 Iredell, 180).

To a plea of misnomer, it is sufficient to reply that the party is known as well by one name as the other (Selman v. Shackelford, 17 Geo., 615).

In an action against William Bryant on a bond executed by William Francis Bryant, it was shown he was known by both names; held, sufficient to sustain the issue, and that there was no variance (Williams v. Bryant, 5 Mees, and Wels, 447).

A capias against Cocken by the name of Cocker. Held, the issue established by proving the writ issued against Cocker, who though truly named Cocken was the real party intended to be sued (Finch v. Cocken, 5 Tyrwhitts, R., 774).

The underlying principle of these cases tends to show that a person can obligate himself under any name he may assume, and the identity of the individual with the contracting name chiefly concerns the court.

The demurrer admits the allegations of the complaint, which clearly identifies Margaret A. White, the testatrix of defendant, with the person who, under the name self-chosen and assumed, and represented by her to Merryman to be her name, executed the deed, on the covenant of warranty of which this action is brought. We think she became liable on the deed itself as the grantor therein, and for the breach of the covenant.

This brings us to the second point raised on the appeal: Whether or not the heirs of the grantee of White’s grantee have a right of action against her, or, rather, her personal representative, for breach of the covenant of j warranty, in that they were legally ejected from the premises, because she had no title to premises conveyed by the deed.

There was a covenant of warranty in the deed of Margaret A. White under the self assumed name of Boberts to Merry-man, and also in the deed of Merryman to Fritz Schad, who died intestate, leaving him surviving and in possession of the premises the plaintiffs, his widow and children; and the covenant of warranty was broken by the eviction of such heirs, said plaintiffs, at the suit of the actual owner of the premises so conveyed by these deeds. The covenant is tím most comprehensive and useful of the covenants in our deeds. It is stated (3d vol. Washburn on Real Estate, p. 659): “It is future in its terms and operation, and runs with the estate to which it is made into the hands of whomever becomes the owner of such estate. But if once broken by an eviction the covenant of warranty stands upon the same ground as the covenants which are broken as soon as made,” citing Wilson v. Cochran (46 Penn. St., 229). In this case Judge Woodward says : “If the covenant be for seizen or against encumbrances, it is broken as soon as made, if a defect of title or encumbrance exist, but if it be a covenant of warranty it binds the grantor to defend the possession against every claimant of it by right, and is consequently a covenant against rightful eviction. To maintain an action for breach of it an eviction must be laid and proved, not necessarily by judicial process or the application of physical force but by legal force of an irresistible title.”

When A grants to B, who grants to C, both grants being with warranty, then C dies intestate, leaving heirs in possession of the granted premises, who are evicted by title paramount to A’s title, it seems to be now well settled in this, state that such evicted heirs have a cause of action on such breach of the covenant of warranty against A, grantor in the first deed. Withy v. Mumford, 5 Cow., 137; Suydam v. Jones, 10 Wend., 184; Ford v. Walsworth, 19 id., 337; Beddoe’s Exr’s v. Wadsworth, 21 id., 120 and 124; 3 vol. Washburn on Real Property (3 ed.), star, p. 662, sections 19, 20 and 21.

The intimation of the court in Kane v. Sawyer (14 Johns., 89), that the grantor in second deed conveying with covenant of warranty would deprive the grantee in that deed of the right of action against the grantor on a like covenant in the first deed, has been overruled in the above cases.

In Greenby v. Wilcocks (2 Johns., 1), no eviction was alleged, and therefore there was no breach of warranty shown, and plaintiff’s cause of action rested on the covenant of seizin, and the breach of this occurred at the instant of making the deed and became a chose in action, which was not assigned by a deed from the grantee in that deed to a subsequent grantee. We refer to these last two cases because the respondent seemed to rely greatly upon them as tending to sustain the demurrer.

The order sustaining the demurrer and judgment must be reversed, and judgment ordered for plaintiffs on the demurrer, with costs, etc.

Clement, C. J., concurs.


text:
    William Selpho, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 23, 1887.)

    1. Assessments—Legislature cannot validate one void for fraud.
    The legislature cannot validate an assessment void or voidable for fraud.
    2. Same—Laws 1874, chap. 588, does not cover such case.
    Chapter 588, Laws 1874, which amended the charter of the city of Brooklyn, covers cases only where lawful assessments had already been made or proceedings were in progress in regard to the same. Following People ex rel. Hays v. The City of Brooklyn (71 N. Y., 495); and distinguishing Matter of Van Antwerp (56 1ST. Y., 261), and Brown v. Ma/yor of N. T. (63 N. Y., 239).

      3 Same—When fraudulent.
    Where an assessment was fraudulently increased, it became thereby an unlawful assessment which could not be enforced according to law.

      4 Same—Fraud, when established.
    Fraud is not to be presumed, yet where the facts are such that they naturally and logically indicate its existence, and are not consistent with an innocent intent, fraud is established.

      5 Same—Statute of limitations—When action accrues—Code Crv. Pro., § 382, subd. 5.
    This action was brought in equity to obtain relief on the ground of fraud and prayed judgment declaring the assessment invalid to the extent of the alleged excessive charges, and reducing the same by deducting such amount and for the recovery of such amount with interest. Held, that the cause of action came within the six year limitation as prescribed by Code Civ. Pro., § 382, subd. 5, and that the cause of action did not accrue until the discovery of the facts constituting the fraud. Brundage’v. The Village of Portchester, 102 N. Y., 494; 2 N Y. State Rep., 398, and Parsons v. Gity of Rochester, 5 N. Y., State Rep., 467, distinguished.

      Sidney V. Lowell, for resp’t; Almet F. Jenhs, for App’lt.
   Osborne, J.

On October 28, 1872, an assessment was confirmed by the common council on map N, sub-division 2 of district No. 29 and part of subdivision No. 1, for what is commonly known as the Third avenue sewer, including the lateral sewers. Plaintiff owned certain lots in said district, on which he paid for his proportion of said assessment, the sum of $983.10.

Plaintiff claims that this assessment, while regular on its face, was invalid in part on the ground that the cost of the work was fraudulently increased and made excessive by collusion, and he brings this action to declare said assessment invalid to the extent of such excessive charges, and to recover back so much of the amount paid by him as was in excess of what his assessment ought fairly to have been.

Defendant’s answer is a general denial and also sets up the defense of the Statute of Limitations.

The issues were referred to John D. Pray, Esq., to hear and determine and he has reported in favor of the plaintiff, reducing his assessment sixteen and one-third per cent. From the judgment entered on the referee’s report defendant appeals.

We shall only advert to the more salient facts in the case as found by the referee to explain the conclusions at which we have arrived.

In May, 1869, the water and sewerage board advertised for proposals for building the main sewer called the Third avenue sewer. In July, 1869, ten bids were received for such work which ranged in amount from $186,027.25 up to $231,169, which latter amount was the bid of W. 0. Kingsley.

On July 12, 1869, the contract was awarded to J. C. Van Winkle, the lowest bidder, for the sum of $186,027.26; by his contract it was provided that the sewer should be completed during the working season of 1870, and it was also further provided that if at any time the engineer of the board should be of the opinion that the work was unnecessarily delayed and would not be finished in the prescribed time, he should notify the contractor to that effect, and if the contractor did not, within five days, take such measures as would, in the judgment of the engineer, insure the satisfactory completion of the work, then the engineer might, with the consent of the commissioners, cancel the contract, and the engineer should then have power, under the direction of the commissioners to finish the work by contract or otherwise and to charge the expense thereof to the contractor.

Good and sufficient sureties to the contract were furnished by Van Winkle.

Van Winkle proceeded with the work under his contract, up to April 15, 1870, at which date he had completed about one-fourth of the work and had been paid on account of his contract, the sum of about $39,000 exclusive of lumber; on April fifteenth the engineer gave Van Winkle the five days notice provided for by the contract, as above stated, on the ground that Van Winkle was unnecessarily delaying the work; on May sixteenth the engineer was authorized by the board to notify Van Winkle to stop work; on May eighteenth the engineer informed the board that he had notified Van Winkle to stop work; the board thereupon and at the same meeting, on the recommendation of its construction committee, and without inviting competition, directed a contract to be entered into with A. O. Keeney for the completion of the work at certain rates greatly in excess of what Van Winkle had contracted for, as shown by the following comparison:

For 84 in. sewer per foot, Van Winkle, $25.00, Keeney, $44. GO-

78 CC cc cc cc 22.00) 43.75

72 cc cc cc cc 22.00. 40.75

66 cc cc cc cc 19.00) cc 33.50

60 cc cc cc cc 16.00) cc 27.00

48 a cc cc cc 11.25) cc 18.25

36 cs cc cc cc 9.00) cc 15.00

30 cc cc cc cc Í.70, cc 13.00

24 cc cc cc cc 6.00) cc 9.00

15 cc cc cc cc 3.00) cc 5.00

The total amount that would have been payable to Van Winkle, if he had completed his contract at the prices agreed upon by Mm, would have been about $186,000, out of which he testified he would have made a profit of twenty per cent.

Van Winkle, at the time the contract was taken from him, it will be remembered, had completed one-fourth of the work and had been paid about $39,000.

There was paid to Kenny, under his contract for the remaining three-fourths of the work, exclusive of lumber, the sum of about $298.000, being about $112,000 in excess of what Van Winkle would have received if he had completed his contract. No increase in the prices of labor or material is shown to account for tMs extraordinary and extravagant increase over the prices contracted to be paid Van Winkle.

On April 28, 1870, and less than one month before the contract was awarded to Keeney, eleven bids were received for the construction of the lateral sewers, the cost of which formed a part of the assessment complained of, and the contract was awarded to Edward Freel as the lowest bidder.

Some of the prices at which the contract was awarded to Freel, as compared with the prices agreed to be paid Keeney on the main sewer contract, are as follows:

For 38 in. sewer per foot, Keeney, $15.00, Freel, $4.75

30 “ “ “ “ “ 13.00, “ 4.20

24 “ “ “ “ 9.00, “ 4.00

15 “ “ “ “ “ 5.00, “ 2.03

The total cost of the main sewer, as fixed by the city, was $485,901.16, in which is included the enormous sum of $129,134.55 alleged to have been paid .for engineering, inspection, maps, etc.

The only pretext or excuse set up by the city for the payment of these large prices to Keeney is that it was necessary to hasten the work, which it is alleged had been delayed by Van Winkle, and that consequently it was proper to pay the increased prices in consideration of an early completion of the contract; but the record does not support the pretext. Van Winkle received his contract on July 21, 1869, and was to complete it during the working season of 1870. Keeney got his contract for the remaimng three-fourths of the work on May 19, 1870, and was to complete it during the working season of 1871; true, Keeney did complete his contract during 1870, but he was not compelled so to do.

While it is true that fraud is not to be presumed, yet where the facts are such that they naturally and logically indicate its existence, and are not consistent with an innocent intent, fraud is established.

We are unable to see that the facts above stated, taken as they are taken from the record, constitute a mere error of judgment. As was said in the Matter of the Lake and Watts’ Orphan Home (92 N. Y., 121), “If the difference in the prices had been such only as could be fairly accounted for upon the theory that the work had been merely improvidently or perhaps extravagantly done, a case would not have been made for the interference of the court. But here there was more, and the facts lead irresistibly to the conclusion that there was either fraud pr some unexplained irregularity.

The sureties on Van Winkle’s contract were men of responsibility, and it is a further significant fact that no proceedings have ever been commenced against them to recover any of the damage.alleged to have been sustained by the city by reason of Van Winkle’s alleged default.

Nor in our opinion does the amendment of June 1, 1874, to the city charter constitute a defense to this action. By this amendment, it is provided that “All assessments heretofore made in said city for any local improvement are hereby confirmed, and the amount of the same is hereby levied as a tax on the several pieces or parcels of land on which the same has been heretofore assessed and apportioned.”

The power of the legislature to impose taxation, either general or special, is too well settled to afford room for question, but no case that has been called to our attention goes so far as to hold that the legislature can validate an assessment void or voidable for fraud; on the contrary, so far as can be gathered from the opinions of the court of appeals, rendered in cases involving acts of a similar character, an assessment void or voidable for fraud is not affected by those acts.

In the Matter of Van Antwerp (56 N.Y., 261), which was an act to reduce certain assessments, the legality of which was denied, and to levy two-thirds of the cost thereof as a tax, the court say (p. 265):

“It is objected that it is not competent for the legislature to validate a void assessment, and that it could only authorize a re-assessment. The answer to this is that the legislature did not attempt to legalize the old assessments, but itself exercised the power of making new assessments. The old assessments are referred to, not for the purpose of adoption, but for the purpose of fixing the specific amount by the proportion specified. The act in question does not interfere with any vested right or cause of action of the petitioner to set aside the original assessment ”

So in Brown v. The Mayor, etc., of New York (63 N. Y., 239), which involved the power of the legislature to ratify a contract of the city which was ultra vires, the validity of the act was recognized, but stress was laid upon the fact that the good faith of the contract was not questioned.

In The People ex rel. Hays v. The City of Brooklyn (71 N. Y., 495), this amendatory act was in question, and it was expressly held that it did not embrace invalid assessments laid without authority or jurisdiction, the court there say: “ It (the act of 1874) evidently, we think, was designed to cover cases only where lawful assessments had already been made or proceedings were in progress in regard to the same. It clearly did not include invalid, unlawful assessments, laid without any jurisdiction and which could not be enforced according to law.

It being our opinion that the assessment was fraudulently increased, as above stated, it became thereby “ an unlawful assessment” and one “which could not be enforced according to law,” and so clearly within the ruling just quoted.

Nor do we think that the statute of limitations is a valid defense to this action. The plaintiff brings this action in equity to obtain relief on the ground of fraud, and prays judgment, “ declaring the assessment invalid to the extent of the alleged excessive charges, and reducing the same by deducting such amount and for the recovery of such amount, with interest.”

We are of the opinion that the cause of action comes within the six year limitation, or, as prescribed by subdivision 5 of section 382 of the Code of Civil Procedure, which provides that the cause of action is not to be deemed to have accrued until the discovery of the facts constituting the fraud.

We are referred by the learned counsel for the appellants to the cases of Brundage v. Village of Portchester (31 Hun, 129, affirmed 102 N. Y., 494; 2 N. Y. Stat. Rep., 398), and Parsons v. City of Rochester (5 N. Y. Stat. Rep., 467), as sustaining his contention.

Neither of those cases, however, are in point. In the Brundage Case the action was not in equity, but was brought for money had and received, and the court of appeals in their opinion affirming the judgment of the court below, say, that if the action had been brought to recover back the money paid upon an assessment apparently valid and.levied according to the forms of law, but rendered illegal by extrinsic facts of those which were not apparent upon the proceedings, it cannot be disputed, but that it would be necessary for the plaintiff to proceed in equity to vacate such proceedings, before he could recover back moneys paid thereon.

In Parsons v. City of Rochester, the assessment which the plaintiff sought to recover had been declared void in another action (Hassan v. City of Rochester), for the reason that all the lands benefited by the improvement had not been assessed as required by the provisions of the city charter, after the determination of the Hassan suit, the plaintiff sued at law to recover back the amount of the assessment paid by him. He sought no relief in equity, alleged no fraud, and it was very properly held that the statute of limitations had run against him.

We are, therefore, of opinion that the judgment appealed from, should be affirmed.

Judgment affirmed, with costs.

Van Wyck, J., concurs.


author: Osbobne, J.

text:
    George Bleier, Resp’t, v. The Bushwick Railroad Company, App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 23, 1887.)

    Negligence—Street Railway.
    The plaintiff with a bundle of tools, was on one of defendant’s open street cars, and riding with his back to the driver; when he was near his place to alight, he arose from his seat, put one foot on the step running along the length of the car, and while, in the act of reaching over for his bundle, was struck by the hub of a large wagon standing on the street, and injured. The wagon lapped over the step and there was barely room for the car to pass. There was a conflict of evidence as to the speed of the car and whether a cautionary notice was given by the driver to his passengers. Held, that it was for the jury to decide whether plaintiff was guilty of contributory negligence or the defendant of negligence, and a nonsuit would have been unjustified.

      M. L. Towns, for resp’t; Moore, Low & Wallace, for. app’lt.
   Osbobne, J.

On the evening of July 19, 1886, plaintiff was returning from his work in New York with a bundle of tools; he got on board of one of defendants’ open cars at the Grand street ferry, and, while riding with his back to the driver, along Meserole street, between Graham avenue and Humbolt street, at which latter street he desired to get off, he arose from his seat, put one foot on the side step running-along the length of the car, and while in the act of reaching over for his bundle of tools, which had been placed under his seat, was struck by the hub of a large beer wagon standing on the street between the car track and the curb, was knocked off the car and received the injuries to recover-damages for which this action was brought.

Plaintiff obtained a verdict for $500, and from this verdict and the order denying a motion for a new trial defendant appeals.

It appeared on the trial that the beer wagon occupied the whole of the space between the car and the curb, that the hubs of the wagon lapped over and on to the side step of the car and that there was barely room for the car itself to get by, indeed there was some evidence that the car scraped against the wagon as it passed: There was conflicting evidence as to the rate of speed at which the car moved, and as to whether a cautionary notice was given by the driver to his passengers.

The learned counsel for the defendants contends that the plaintiff was guilty of contributory negligence, and there was no evidence of negligence on the part of the defendant and that the motion for a non-suit should have been granted.

We are of the opinion, however, that there was no such negligence shown on the part of the plaintiff, under all the circumstances of the case as would have justified the court below in granting the motion; while on the other hand there was sufficient evidence of negligence on the part of defendant to justify the submission to the jury.

Under these circumstance it was the duty of the learned trial judge to submit the case to the jury under proper instructions.

We have carefully examined the charge to the jury, and, taken as a whole, it fairly presents to the jury the principles of law which were to govern them in deciding the case, and we do not think there is any such error therein as would render it proper for us to disturb the verdict.

Judgment and order denying new trial affirmed with costs.

Van Wyck, J., concurs.