text:
    Philip Hirshkind, Resp’t, v. Private Coachmen’s Benevolent and Charitable Association, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Appeal — Evidence.
    A judgment, rendered by tlie court without a jury, will be reversed as against the clear weight of evidence, where it rests solely upon ihe testimany of the assignor of the successful party, which is flatly contradicted by his own written entry, his admission and the testimony of two wit1 nesses, one of whom had no connection whatever with the transaction in question.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      William, J. Fanning, for app’lt; Joseph Steiner, for resp’t.
   Giegerich, J.

The defendant is an incorporated society composed of private coachmen. On January 9, 1894, it gave a ball, of which one Patrick B. Lonegan, the plaintiff’s assignor, acted as secretary. His duty, as such, was to keep an account of all the moneys received by members, and delivered to him. He was also a member of the soliciting committee, the duties of which were to solicit donations to the ball, and turn them over to the officers thereof. He testified at the trial that the amount of money which he paid over to the defendant was $2,277.55, and that the total amount received by him in its behalf was $2,248.25, making a difference of $29, for which this action is brought. The item in dispute is one for $50, being a check of Valentine & Co. for that amount, to the order of Brewster & Co., and indorsed by them to the order of the defendant, which received the amount thereof on the following indorsement: “ Michael Garvey, Present the Private Coachmen’s Benevolent and Charitable Society Michael Garvey present.” Plaintiff’s assignor, in the cash book kept by him, charges himself with having received said check from one Thomas Fields, a member of the soliciting committee, who collected in the lower part of the city, which, it seems, the society divided into three parts; and plaintiff's assignor admits that he gave to Fields a receipt for moneys received from him, including the amount of said check, although, on the trial, he denied that he had ever received the same, and he attributes the error in the cash book to the hurried manner in which he made the entries therein. But we find, upon an inspection of the cash book in question, that, instead of showing haste, great care seems to have been taken in making the entries therein. Under the heading, “ Donations from Lower District,” there are ten entries, legibly and carefully written, which amount, in tho aggregate, to the sum of $245, among which is the donation of Valentine & Co. for $50 (the item in controversy), which entries, with the single exception of the one, “ B. Altman & Co., $10,” have opposite to each a check mark in pencil, thus showing a comparison of the entries with other data. The testimony of the plaintiff’s assignor that the check in question never came into his possession is flatly contradicted by the testimony of said Fields, who testified as follows:

“ Q. Did you solicit a subscription of the Valentine Varnish Co. ? A. Yes, sir. Q. What do you know as to whether or not that was paid? A. I know it was paid. Mr. Valentine told me he would send it to the Private Coachmen’s Society. Q. Did Lonegan, the last witness on the stand, say anything to you with regard to it ? A. He told me he received it personally, and I gave him credit for it. Q. Did he give you a receipt for it ? A. I asked him, the night in the society’s room, did he receive a check and he says to me: 1 There is your receipt. What more do you want?’ He referred to that book. I asked him all about those little checks, and he said he received them. I never saw the check.”

The plaintiff’s assignor was also contradicted by James L. Devine, the ex-president of the society, who testified :

“ Q. Did you attend the meeting of the society in May last? A. Yes, sir. Q. Was Lonegan, whom you saw on the stand, at that meeting that night? A. Yes, sir. Q. Did you hear him say anything about the check from the Valentine Varnish Co? A. Yes, sir; he said he gave Fields credit for that check. Fields was on the soliciting committee of that district, and he gave him credit for that check. Furthermore, there is no member in the society that has power to sign checks. All these checks come in, and the seal of the society is put on them.”

On an appeal from a district court, it is within our province to reverse the judgment, if it is against the weight of the evidence. Schumacher v. Waring, 7 Misc. Rep. 161; 57 St. Rep. 539, and citations. “ And in determining the weight it is proper,” as was said by Judge Bischoff in the case last cited, “ to consider the quality of the evidence, the interest of the witnesses in the issue of the trial, and the compatibility and consistency of their several statements with the truth, as it may appear from attending circumstances.” - It was incumbent upon the plaintiff to prove the materiál allegations of the complaint denied by the answer. Sielke v. Sielke, 3 Misc. Rep. 81, 82 ; 51 St. Rep. 761. The plaintiff’s .case rests solely upon the testimony of the plaintiff assignor that he did not receive the Valentine & Co. check, but this, we have seen is flatly contradicted by his own written entry in the cash book, his admission that he had given a receipt therefor to Fields, and by the testimony of two witnesses, one of whom had no connection whatsoever with the transaction respecting the check in question. These facts, in our'opinion, determine the question of probability in defendant’s favor, and, tested by the rules above cited, we conclude that the judgment in'plaintiff’s favor is against the clear weight of the evidence. For these reasons the judgment should be reversed, and a new trial ordered, with costs to the appellant, to abide the event.


source: Caselaw Access Project

author: Daly, C. J.

license: Public Domain

text:
    Adelaide B. Styles, Resp’t, v. Joseph Blume, App’lt.

      (New York Common Pleas. General Term,

      Filed May 6, 1895.)

    1. Vendor and purchaser — Title.
    The mere-pendency of an action attacking the title of the vendor, and the filing of lis pendens in such action, do not make the title defective nor create a lien upon the land.
    2. Same — Depreciation.
    A vendee cannot, when he is responsible for the delay in conveying, refuse title to land on the ground that it has depreciated in value since the contract was made.

      Appeal from a judgment, entered in favor of plaintiff.
    A. J. Skinner, for app’lt; Johnston & Johnston, for resp’t.
   Daly, C. J.

By a contract in writing made on April 29, 1893, between the parties to this action, it was agreed that defendant should sell, and plaintiff purchase,- the premises on the south side of 134th street, distance 250 feet west of Eighth avenue, for the consideration of $8,500; the delivery of the deed to be on May 29,1893, and the consideration was to be paid as follows: $500 on the execution of the contract (which was done); $1,000 on delivery of the deed, — the purchaser to give a mortgage for $2,500, and take the premises subject to mortgages aggregating $4,500. The time for the delivery of the deed was extended to June 20, 1893. The complaint demanded that defendant specifically perform his contract, and, in case he could not make title, that plaintiff have judgment for the $500 paid, together with damages. The complaint alleged want of title; that the fee of the premises was vested in one Anton F. Blume, who had commenced an action against defendant to set aside .a deed to the latter made July 14, 1892, in which action a lis pendens had been filed. It was also alleged that the taxes of 1892, and Groton water rents for 1892 and 1893, and an assessment of $115 on the premises, were unpaid. The complaint also set up fraudulent concealment of the above facts by defendant from the plaintiff, who relied upon defendant’s representation that he had a good title and that the premises were unincumbered, and that plaintiff had entered into possession of the premises, and expended moneys thereon, with defendant’s consent. The answer denied the alleged fraud ; averred that defendant had a good title, and that the aforesaid lis pendens was wrongfully filed; that he had offered to pay all lawful liens, but that plaintiff refused to accept bis conveyance solely because of such ■lis pendens. The answer demanded a dismissal of the complaint. The trial of the action was had on June 4, 1894, and the defendant then stated he was willing to consent to a judgment for specific performance, but plaintiff claimed that the property had depreciated in value. Proof that the property had depreciated $500 in value was taken, under objection of defendant to its materiality. FTo proof of fraud was made. The facts as to the liens for taxes, Croton rents, and assessments were admitted. It was conceded that $125 was a reasonable fee for examining title. Judgment was entered in favor of the plaintiff for $625 and interest and costs; declaring that sum to be a lien on the premises, and that they be sold to satisfy it. Findings of fact and law were filed and signed by the trial judge, finding that the defendant had neglected and refused to fulfill his agreement; that he had not title; that the fee of the premises was in Anton F. Blume, who had commenced the aforesaid action and filed the aforesaid lis pendens; that the defendant fraudulently concealed the aforesaid facts; that defendant is unable to specifically perform the contract and put the plaintiff in as good a condition as she was at the time it was executed; and •.that defendant admitted the allegations of the plaintiff’s complaint, and offered to allow judgment to be taken against him for specific; performance. 1

It thus appears that although this action was brought to compel specific performance of the contract to convey, and although defendant, on the trial, was willing to convey, and consented to a judgment for specific performance, yet the plaintiff was permitted to change her cause of action into a claim for the return of her money, and damages on the ground that the property had depreciated in value. While the court found that the vendor had no title, but that the agreement of sale was induced by fraudulent con-, cealment of facts, it would seem that the judgment could not have proceeded upon those grounds, for a lien in favor of the plaintiff could not.be imposed upon property which defendant did not. own ; and as there was, on the other hand, a specific finding that the property had depreciated in value, and the defendant was unable to put the plaintiff in the same position she would have been in if defendant had complied with the contract, it may be assumed that that was the controlling fact-in the disposition of the cause. If it were, then it seems quite clear that the judgment was erroneous. A court of equity may refuse to decree the specific performance of a contract for the sale of lands at the prayer of the vendee, where the vendor objects that it would be unjust to compel him to give a deed, as where the performance of the contract had been prevented and delayed for many years, without any fault of the vendor, by the pendency of a litigation commenced before the contract was made, and the property had in the interim very greatly increased in value, and the situation and condition of the parties had been greatly changed and altered, it being obvious that the contracting parties never intended the results that followed their action. Fitzpatrick v. Dorland, 27 Hun, 291. And it may • be assumed that a court of equity would refuse-specific performance, as against the vendee, where, after long delay, not caused by his fault, the property had greatly depreciated in value. Ho such case was made out by this plaintiff. The action was tried about a year from the time fixed for the delivery of the deed. The deed was rejected by the vendee upon two grounds which were untenable : First, that an action was pending, brought by a third party, to set aside his deed of the premises to the vendor, and that a Mspendens had been filed and recorded in such action; and, second, that there were' unpaid certain taxes, assessments, and Groton rents. The mere pendency of an action attacking the title of the vendor, and the filing of lis pendens in such action, do not make the title defective, nor create a lien on the land. Hayes v. Nourse, 114 N. Y. 595 ; 24 St. Rep. 569. And it does not appear that, had plaintiff been willing to take the title, defendant would not. have cleared the land of the liens, which were much less than the cash payment which plaintiff was to make on the delivery of the-deed. Ho attempt was made on the trial to show that the pending action of Anton F. Blume was well grounded, or that, for any reason, the defendant could not give title. Ho delay in taking title was therefore caused by the defendant. The delay was caused by the' plaintiff’s unreasonable refusal to take title, and, if the property depreciated meanwhile, it afforded her no ground for relief from the contract, for that would enable her to profit by her own delay. The amount of the depreciation, viz., $500, in a contract of $8,500, is too inconsiderable, in any event, to warrant a denial of specific performance on that ground alone. If the property had increased in value to that extent only, the vendor under no circumstances would be relieved from his contract for that reason. But, whatever the money difference, it is of little consequence, as the vendee caused the delay ; and the rule applied in the case cited is not applicable to this case, for that reason.

If, on the other hand, the judgment was given for the plaintiff for the return of the $500,' and damages, on the ground that the defendant had no title, or had induced the making of the contract by fraud, the evidence fails to sustain the findings and judgment in that regard. The findings of fact and law were duly excepted to, and such exceptions raise the question as to the sufficiency of evidence.

There is a finding that the defendant admitted allegations of the complaint. It appears from the record that plaintiff’s counsel expressly declined to take the facts as admitted by the offer of judgment, and perferred to have them stated on the record, and thereupon proposed specific admissions of fact, which were conceded by the defendant. Such admissions did not in the remotest degree include want of title in the vendor, nor fraud, but expressly limited to admission of tender, the amount of the liens, pendency of the action of Blume, the filing of the lis pendens, and the vendee’s refusal to receive the deed on that ground. It was clear that plaintiff claimed to recover upon the facts specifically admitted, and upon proof of the depreciation in value afterwards put in by her. Wo other proof was given on the trial, and there was therefore no evidence, by admisson or otherwise, of want of title or of fraud. The judgment must therefore be reversed, and a new trial ordered, because the plaintiff failed to establish the cause of action set forth in the complaint, viz. want of title, fraud, and because the depreciation of value of the premises pending the action did not justify the release of plaintiff from her contract.

Judgment reversed, and new trial ordered; costs to appellant, to abide the event. All concur.


author: Giegerich, J.

text:
    Bartolemy J. Olifiers. Pl’ff, v. Perry J. Belmont, et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed May 10, 1895.)

    Costs — Separate bills.
    Where a demurrer to an entire complaint in a common law action is sustained, all the defendants, who have separate interests and appeared by separate attorneys, are entitled to separate bills of costs.
    Motion to settle the decision on the order sustaining the demurrer.
    Leavitt, Wood & Keith, for pl’ff; Bowers & Sands, for def’t Belmont ; Chandler, Maxwell & Philip, for def’t Chandler.
   Giegerich, J.

Where a demurrer to an entire complaint in a common-law action is sustained, the right of the defendant to costs is absolute, Tallman v. Bernhard, 75 Hun, 30; 58 St. Rep. 597; and in actions at law, where all of the defendants have succeeded upon the trial, those not united in interest, who have appeared by different attorneys, are entitled to costs of course and as a right. Railway Co. v. Burkard, 40 Hun, 625; Lane v. Van Orden, 11 Abb. N. C. 228; 63 How. Pr. 237. I do not,' therefore think I have any power to direct that only one bill of costs be allowed. Besides, I doubt if such power ought, if it existed, to be exercised in present case, when the defendants. Belmont and Chandler appeared by separate attorneys, who both submitted elaborate briefs. While I do consider it necessary, under the provisions of the Code of Civil Procedure relative to decisions upon demurrers, viz. sections 1010 and 1020, for the court to make separate and formal conclusions of law (2 Rum. Prac. p. 234), as distinguished from a simple statement indicating the disposition made of the demurrer, I see no objection to such a practice, although it is unusual, and accordingly sign the decisions as proposed by the respective defendants Belmont and Chandler.


text:
    Lena Schmidt, by Guardian, etc., Resp’t, v. Valentine Cook, et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Nuisance — Landlord and tenant.
    A landlord if, with a reasonable opportunity of ascertaining, though without actual knowledge of, the existence of a nuisance on the premises, lets them with the nuisance existing thereon, is liable for injury to the tenant or his family, unless the injured party has been guilty of contributory negligence.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict for plaintiff.

      E. M. Burghard, (Fred W. Hinrichs and Alfred E. Hinrichs, of counsel), for appl’ts; Jeroloman & Arrowsmith, (John Jeroloman, of counsel), for resp’t.
   Giegerich, J.

When the case was last before this court, it was, among other things, held that the allegation and proof of the bare ownership was not sufficient to charge the owner of premises, which were occupied by others, with responsibility for injuries occasioned by a nuisance upon such premises, Schimdt v. Cook, 4 Misc. Rep. 85; 53 St. Rep. 84; and, although the complaint was held to be bad in substance, a new trial was granted, in view of the possible allowance of an amendment. Upon the trial which is now the subject of review, the complaint was amended by inserting the words “ and landlords in control;” so that the third paragraph of the complaint reads as follows: “ That the defendants, at the times hereinafter mentioned, were the owners and landlords in control of the premises No. 223 East 36th street, New York city.” It appears from the undisputed evidence that the apartments occupied by plaintiff's parents and family were rented to plaintiff’s father, as a monthly tenant, by John E. Norris, the agent of the defendants, who were the landlords of the premises in question, and to whom, through the said agent, the rent of said demised premises was paid by plaintiff's father during the period of said occupancy, which commenced on July 1, 1890, and continued until after the happening of the accident to the plaintiff; that the premises were occupied by plaintiff’s father and two other families as a tenement house ; that, at the time of the accident in question, the plaintiff was a child upward of ten years of age, and resided with her parents upon the demised premises; that there was a large yard in the rear of the house, about forty feet deep by twenty feet wide, used in common by the tenants, and in which their children were in the habit of playing; that, when the demised premises were hired, Mr. Norris, defendants’ agent, expressly stated “ that it was a nice yard for children to play in, and would keep the children off the stoopthat the entrance to the yard was through a common passageway or hallway in the basement; that plaintiff, while at play in the yard with two of her companions, was injured by the falling upon her right foot of a large, flat stone, thirty-three inches long, twenty-five inches broad and three inches thick, and which had stood up partly against a wooden fence, and partly against a stone wall, almost perpendicularly, such wall and fence not being quite even, there being about two or three inches difference ; and that the said stone had stood in that position for two or three months before the accident, which occurred on the 20th day of August, 1890.

Plaintiff’s version of the accident is that she and her companions had been at play in the yard the entire day; that in the afternoon she played piano on the said stone ; that she said to her playmates that she was going to play the supper march for them, that they could hurry up and get ready; that she was drumming on the stone as if playing on a piano, turned around, and called Mamie and Corneille. “ I turned like that (illustrating), and with that the stone fell on my foot.” And she further testified, in answer to the following questions:

“ Q. What part of the stone fell on your foot, the front or the side of it? A. The upper part I was playing on. Q. Where you had your fingers, on top, came over towards you? A. Yes. Q. And that part where you were drumming with your fingers upon, playing the piano, fell on your foot? A. Yes. Q. Now, did you pull that stone over on yourself? A. No. Q. How did you get your foot out from under that stone, if you remember? A. Mamie Lang and Corneille pulled, — helped to pull it up.”

She further testified that the stone first struck her left leg, and she was trying to hold it up, and it slipped from her hand, and went on her right foot; that she was not looking at the stone at the time she turned around. that she never played on that stone before; that they played around the yard a great deal; once in a while “ puss in the corner,” and would run from one end of the yard to the other; that they played various children’s games in that yard; that no one ever warned her about the stone, nor did they tell her that it was dangerous ; that it did not seem, dangerous to her; and that she did not put her feet behind the stone.

When the plaintiff rested, the defendants moved to dismiss the complaint, upon the grounds hereafter stated, which motion was denied, and they duly excepted. The defendants did not call any witness, and, having rested their case upon the plaintiff’s evidence, they renewed the motion to dismiss, which was likewise denied, and the defendants again noted an exception. The defendants have not on the present appeal raised any question as to the sufficiency of the allegations of the complaint, and the evidence respecting their possession and control of the premises during the time plaintiff’s father occupied the same as a tenant of the defendants, and the only grounds urged by them for a reversal of the j udgment are :

“First. There is neither an allegation in the complaint nor evidence showing that the defendants were responsible for the injury. Second. The evidence fails to show absence of contributory negligence on the part of plaintiff, and, on the contrary, shows that the injury was caused by her own negligent act.”

It is urged in support of the first point that there is nothing in the appearance or position of the stone to indicate that it was dangerous ; and attention is called to the testimony of witnesses, including that of plaintiff and her parents, upon this point, all of whom testified that they did not notice anything dangerous about the stone. But the defendants were bound to know that a stone of the dimensions before stated would naturally tempt children to play upon and about the same, and, by reason thereof, become dangerous to life and limb; and hence the defendants owed to the plaintiff and other children who played in the yard a duty of precaution against harm. Schmidt v. Cook, supra; Kunz v. City of Troy, 104 N. Y. 344; 5 St. Rep. 642; Earl v. Crouch, 32 St. Rep. 13; 40 id. 847; Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29.

The defendants further contend that there is no evidence that they placed, or caused to be placed, the stone in the position it was in on the day of the accident, nor that they had actual or constructive notice of its condition or position, and that, consequently, they are not liable. Even if the defendants did not place or cause to be placed the stone in the postion it was in on the day when the accident occurred, or if they were ignorant of the existence of the stone, yet, if, by the exercise of reasonable care and diligence, they would have known of its existence, the opportunity of knowledge stands, for the purposes of the case, as actual knowledge, and the defendants are chargeable as if they had created the nuisance themselves. Kunz v. City of Troy, supra; Timlin v. Oil Co., 126 N. Y. 514; 37 St. Rep. 906.

It appears from the undisputed evidence, and the jury by their verdict, have found, that the stone was allowed to remain in the same position a sufficient length of time without any endeavor on the part of the defendants, by the exercise of reasonable care and diligence, to ascertain its dangerous position; and, having let the premises with the nuisance existing thereupon, they are, under the circumstances, liable for the injuries sustained by the plaintiff, Ahern v. Steele, 115 N. Y. 203; 26 St. Rep. 295, unless she has been guilty of contributory negligence. The' defendants insist that she was, but the evidence does not support their contention. In passing upon the question of contributory negligence,, this court, on the former appeal, through Judge Pryor, said:

“ Though the toying of the plaintiff .with the rock was the occasion of its fall, contributory negligence is not a necessary inference, but may be negatived by a contrary inference that the plaintiff was in the exercise of due care. Being eleven years old, and not of infirm or inferior faculties, she was sui juris, and responsible for the observance of care; not, however, the care of an adult, but only for a degree of care proper to her age and condition. * * * It is not the contributory act merely, but the contributory negligence of a plaintiff, that defeats his recovery.’’

As the evidence adduced upon this point was substantially the same at the trial under review as upon the former trial, the foregoing rules should guide us in the disposition of the question under consideration.

Applying these principles to the present case, it is apparent that the jury were warranted in finding by their verdict that the plaintiff was free from negligence. The plaintiff was lawfully in the back yard, reserved by the defendants for the common use of the tenants and their children. She was encouraged to play therein by the representations of defendants’ agent, made at the time of the letting, that it was l' a nice yard for children to play in.” In toying with the stone the plaintiff indulged the natural instincts of a child in amusing herself by playing piano on it, and, as she did not pull the stone over herself, it is a reasonable deduction from the evidence that, by reason of her age and condition, she did not appreciate the dangers by which she was surrounded. The learned trial justice properly left it to the jury to determine whether the plaintiff acted with that degree of prudence which might reasonably be expected, under the circumstances, of a child of her years and condition, Schmidt v. Cook, supra; Earl v. Crouch, supra; Stone v. Railroad Co., 115 N. Y. 104; 23 St. Rep. 551; Swift v. Railroad Co., 123 N. Y. 645; 33 St Rep. 604, and we see no reason for disturbing their determination of the facts in relation to this branch of this case.

The record discloses that other exceptions were taken by the defendants at the trial, but they have not been relied upon on this appeal. At all events, we are satisfied, after a careful examination, that the rulings of the trial justice were in all respects correct. The judgment should therefore be affirmed, with costs. All concur.


author: Freedman, J.

text:
    Dundee Chemical Works, App’lt, v. New York Mutual Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Insurance — Warranty—Breach.
    Breach of a warranty that the interest of the insured in the insurance has not been, nor will not he, assigned to a common carrier, renders the policy void, though the company is not injured thereby.
    3. Same — Assignment.
    A provision in the bill of lading that the carrier should have, in case of loss, the benefit of the insurance on the goods, and not be answerable over to the insurer, operates as an assignment of the insurance to the carrier.
    Appeal from a judgment dismissing the complaint

      W. C. Beecher, for app’it; George A. Black, for resp’t.
   Freedman, J.

This case was tried by the court on an agreed statement of facts, and the most important question presented by the appeal is as to the effect to be given to section 4 of the bill of lading, in view of the nonassignment clause in the policy. The words of the policy, “warranted by the assured that their interest in the within insurance has not been assigned, or will not under any circumstance be assigned, to any common carrier,” import an. absolute obligation on the part of the assured; and a breach thereof rendered the policy void, without reference to the question whether the said breach caused injury to the underwriter or not. 1 Pars. Mar. Ins. p. 337.

The question then remains whether there was any such breach. At the time of the shipment of the goods, the Dundee Chemical Works received from the railroad company a certain bill of lading, under which the company agreed to carry the goods according to the terms and conditions therein specified. The fourth section of this bill of lading contained the following clause, viz.:

“ In case of loss or damage to any of the goods therein mentioned for which this company will be liable, it is agreed that they shall have benefit of any insurance that may have been or may Ije effected on said goods, and shall in no case be answerable over to the insurers.”

Upon this bill of lading were written the words “O. R, Rel.,”' which stand for “Owner’s Risk, Release ; ” and in consequence of such release, a lower rate of freight was charged. This bill of lading constituted the contract for the carriage of the goods between the plaintiff and the railroad company, and by it the paintiff, in the face of its contract with the insurance company not to do so, and in order to obtain a lower rate of freight, gave to the carrier the benefit of the insurance, and expressly agreed that the carrier should in no case be answerable over to the insurers. This was a valid agreement, founded upon sufficient consideration to assign the interest of the assured; and, under all the circumstances, it was, between the parties to this action, just as effectual as an assignment in terms. The following considerations will take this clear. By the law of the contract of insurance, the assured impliedly agrees with his insurer that he will assign to him all claims and remedies against whoever shall cause injury to the property insured ; and, upon the payment of the loss to the assured, the insurer becomes subrogated to all the rights which the assured had or-then has, and any act of the assured which discharges or diminishes the rights of the insurer to such subrogation is a complete or pro tanto discharge of the liability of the insurer. In addition to this implied contract, the present case contains the express warranty of the assured that the interest of the assured has not been assigned, or will not under any circumstances be assigned, to any common carrier.

In Platt v. Railroad Co., 108 N. Y. 358; 13 St. Rep. 660, the court of appeals construed a bill of lading containing identically the same language as the bill of lading in this case, and in doing so it was said :

“ Here, by the express contract between the assured owners and the railroad company, it was to have the benefit of the insurance, and thus it was entitled to the insurance for its indemnity; and when the insurance company paid the entire loss sustained by the fire to the assured, by the very terms of the contract, it relieved the defendant of any liability therefor. If the insurance company had not paid the loss to the assured, upon the payment of the loss by the defendant it (the common carrier) would have been entitled to be subrogated to the rights of the assured and to the full benefit of the policy which the assured had taken.”

The construction and interpretation given to these°words by the court of appeals should be adhered to in the present case ; and in so far as the case of Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, is in conflict therewith, it should be disregarded. If, then, under these words of the bill of lading, the carrier is to have the full benefit of the policy, and the carrier is entitled to be subrogated to the rights of the assured under the policy, how can it be said that, in effect, the assured has not assigned his interest in the policy? Subrogation in one instance cannot mean any less than it does in the other. . The right of subrogation in the carrier is destructive of the right of subrogation of the insurer. By the contract entered into between the plaintiff and the carrier, the rights stipulated for by the insurer have been wholly nullified and cut off. This constitutes a breach of contract on the part of the plaintiff, and, within the rule laid down in Fayerweather v. Insurance Co., 118 N. Y. 324; 28 St. Rep. 689, defeats plaintiff’s right to recover on the policy.

The exclusion of the question addressed to Aekerson, a witness called on behalf of the plaintiff, and who was the superintendent of the Dundee Chemical Works, “Did you know anything, at the time these goods were shipped, of any such clause as is contained in article 4 of the bill of lading (Exhibit A) ? ” took place under circumstances from which it is not apparent that a legal error was committed thereby.

The judgment should be affirmed, with costs.

All concur.


author: Beekman, J.

text:
    Martin Kennedy, App’lt, v. Jackson Architectural Works, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Master and servant — Appliance.
    Where the master has furnished a machine or appliance, requiring adaptation to the work in hand, and which, if properly adjusted, is suitftble for the purpose for which it is intended, the work of so adjusting it is properly left by him to those engaged in using it.
    8. Same.
    If the appliance is carelessly or improperly set up under the directions of the foreman, his negligence in that regard is the negligence of a fellow servant, not performing in that respect a duty primarily resting upon the master.
    Appeal from a judgment, dismissing the complaint.

      John T. Canavan, for app’lt; Wilson & Wallis, for resp’t.
   Beekman, J.

At the time of the injury complained of, the plaintiff was in the employment of the defendant, who was engaged in constructing the iron w ark of a building then in course of erection. The plaintiff was one of a gang of four men, who were in charge of a foreman, all of whom were also in the employment of the defendant. In order to perform the work upon which they were engaged, the use of a derrick was necessary. Such a derrick was supplied by the defendant. There is no evidence in the case to show that it was not" a safe and proper appliance for the purposes for which it was intended to be used, or that there was any defect in its equipment. It appears from the proofs that it had already been in use during the time that the plaintiff was employed upon the building in question — that is, about a week before the accident — for the performance of the same kind of work as that for which it was being used at the time of the injury. It consisted of two stems of wood, united by a head block at the top ; and a beam of wood at the bottom, with proper bracings of iron. The stems were set in mortises in th'e base block, but were not provided with tenons, so that the stems could be lifted out of the block. In order to employ the derrick, it was necessary that it should be setup at the place where its services were required, and wire stay ropes were fitted to it, to be fastened to the beams of tlm building in such a. way as to give it the necessary rigidity to prevent it from falling when in use. On the morning of the day of the accident, the derrick was moved by the plaintiff, and those with whom he was working, to a portion of .the building, where further work was necessary, and was set up by them at that place, under the directions of the foreman, the. wire stay ropes being attached at such places as he considered necessary. It was then set in motion, for the purpose of hoisting an iron column which was to be placed on the cap of a similar column below. The plaintiff was seated, where his duty required him to be, close to the cap of the lower column, and was engaged in an effort to bring the base of the column, which was then suspended from the derrick, into juxtaposition with the cap of the column below, when the derrick lost its equillibrum and fell over, precipitating the plaintiff to the floor below, in consequence of which he suffered severe injuries.

Upon the trial of the action, there was very little evidence to explain the cause of the accident. None of the stay ropes had given way or become loosened, nor had any portion of the derrick broken. It did appear that one of the stems of the derrick had come out of the mortise in which it had been placed, but there was absolutely no evidence in the case tending to show that a derrick thus put together was not safe or proper to be used, or that this was a defect. Certainly, if derricks so adjusted were in common use, and in that condition were reasonably safe, the defendant was under no obligation to the plaintiff to provide additional means of security. A master is not bound to furnish the best known or conceivable appliances; he is required to furnish such as are reasonably safe, Burke v. Witherbee, 98 N. Y. 562; Probst v. Delamater, 100 N. Y. 266, and to see that there is no defect in those which his employes must use. Gottlieb v. Railroad Co., 100 N. Y. 462. The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful; not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied. These rules are not violated when such machinery becomes insufficient, only when negligently or carelessly used.” Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621.

The burden rests upon the plaintiff of showing that the defendant had not exercised such care. He has, however, failed to make any proof from which such lack of care may be inferred ; and we must therefore assume that the derrick in question was a reasonably safe and suitable appliance; that it was not affected with any defect in any of its parts, or in the assembling of its parts; and that the- accident was the result, not of any defect in the derrick as a machine, but of some error committed in setting it up for use by the gang or the foreman of the gang of men by whom it was being employed in furtherance of their work. The plaintiff offered proof on trial for the purpose of showing that the defendant had not shown reasonable care in the selection of the foreman, with the object of supporting a claim that such foreman was not a fit or suitable person to have charge of the erection and proper securing of the derrick ; that the derrick was "not properly set up and secured ; that the defendant had consequently failed in the performance of one of the duties which the master owes to his servant, namely, that of exercising reasonable care in the selection of suitable and competent fellow servants, and was therefore liable to the plaintiff for the negligence of which the foreman in question was guilty. This evidence was ruled out by the trial judge, on the ground that the plaintiff had made no such claim in his complaint, but relied solely upon "the charge that the injury was caused by the negligence of the defendant in “ using defective and unfit tools, machinery, and appliances, and in negligently, improperly, and insufficiently erecting, securing, and fastening same.” The ruling of the learned judge below was correct. The duty resting upon the master of providing competent fellow servants is a separate and distinct one. If the plaintiff had intended to charge the defendant with a lack of duty in that regard, he should have so stated in his This he has not but has gone to trial charging and solely relying upon a lack of duty on the part of the defendant in respect to the sufficiency of the derrick itself.

The case, then, presents but one single point for our consideration : Did the defendant perform its duty tb the plaintiff in supplying the machine with all the appliances necessary and desirable for the purpose of setting it up and properly securing it at the place where it might be required for use, or did its duty go further, and demand that, wherever it might be set up, it was still incumbent upon the defendant to see to it that proper care was exercised in performing such work? The contention of the counsel for the plaintiff is that the derrick was not a machine or tool, in the sense in which those words are understood when dealing with the question of an employer's liability, until it has been actually set up and is-ready for use; and that, consequently, the defendant was bound to provide a derrick properly set up and secured at each place where it might be required, and for its failure so to do at the place in question has. made itself liable to the plaintiff for the resultant .injury. We are unable to go at any such length. The evidence shows that the derrick was not intended to be a permanent structure, but was to be transferred from place to place, "wherever the occasion of the work required its presence. The work was being done in sections, and, as each section was completed, it became the duty of the men to shift it, and set it up elsewhere for use upon another section. Under such conditions of use, the defendant must be considered as having discharged its duty to its workmen when it provided the machine in a proper condition to be set up for use, and furnished with all the appliances in customary and ordinary use for the purpose of giving it stability. It was a tool essential to the work, constantly requiring change of position, as the extingencies of the work in its-progress demanded. It was something complete in itself, but demanding adjustment and readjustment in its relation to the purposes-for which from time to time it was required. It, therefore, naturally became a part of the duty of those engaged upon the work, and a. part of the business for which they were employed, to use it like any other tool; and the shifting of it from place to place, and setting it. up, became a necessary adaptation of it to the work upon which they were engaged, and was thus a use of it which fell within the line of their general duty. The distinction between a tool or machine thus required to be used and one permanently set up by the master for use will be recognized. IE the derrick was carelessly or improperly set up under the directions of the foreman, his negligence in that.regard was then the negligence of a fellow servant, not performing in that respect a duty primarily resting upon the defendant. There was some evidence tending to show that the-fall of the derrick was the result of a failure to secure one of the stay ropes at a point sufficiently distant from the base of the derrick to give the latter proper stability. There is no other evidence in the case upon which the accident may be attributed to any other cause. This, however, was due to the carelessness or erroneous j udgment of the foreman in setting it up; and, as in that. regard he was acting simply as a fellow servant of the plaintiff, and was not performing a duty which, the defendant himself owed to the latter, the plaintiff cannot recover. The principle governing cases of this nature is also illustrated by the following authorities : Hudson v. Steamship Co., 110 N. Y. 625; 16 St. Rep. 416; Webber v. Piper, 109 N. Y. 568; 16 St. Rep. 423; Cregan v. Marston, 126 N. Y. 568. 38 St. Rep. 428; McCampbell v. Steamship Co., 144 N. Y. 552 ; 64 St. Rep. 246. In the last cited case the plaintiff was a longshoreman, in the employ of the defendant, and was assisting in the unloading of the company’s steamship Gallia. For the purpose of discharging the cargo, a skid, variously estimated at from twenty to twenty-eight feet in length and seven feet wide, was placed in position with one end upon the deck of the vessel, and the other upon the dock. It was secured to the side of the ship by means of ring bolts, and upon the dock it was attached to a “ mouthpiece,” so called, tapering to an edge, by lanyards tied through rings, so as to allow the skid and mouthpiece to move backward and forward upon the dock, following the movements of the vessel, caused by the action of the water. The plaintiff was going down the skid with a loaded truck when the front wheels of the truck dropped into an opening between the end of the skid and the mouthpiece, five or six inches in width, causing a sadden jerk of the handle of the truck, which threw him down, and caused the injury complained of. No one had before noticed that the mouthpiece was not securely tied to the skid. It was in apparent position when the plaintiff and his associate drew the truck up on to the vessel; and, had it been in place when the plaintiff was running down the skid, presumably he would have escaped injury. The court, in its charge to the jury, limited their consideration upon the question of negligence to the sufficiency of the skid and mouthpiece and the character of the opening between them. It was then requested by the defendant to charge that:

“ If the defendant furnished suitable appliances securing the mouthpiece to the skid, and the injury occurred because the mouthpiece was not properly secured, the plaintiff cannot recover.”

And again:

‘‘ If the defendant’s employes who rigged the skid and mouthpiece were fellow seruants of the plaintiff, and if the injury was occasioned by their negligence alone, the plaintiff cannot recover.”

Both of these requests were refused, and an exception taken to each refusal. The exceptions were well taken. At page 556, 144 N. Y, the court says :

“ The most that can be claimed by the plaintiff is that the mouthpiece was improperly tied to the skid. There is no other complaint made with reference to the skid, the mouthpiece, or the appliance furnished for fastening them together. They were of the kind and character in common use. They were open, visible appliances, of simple construction, the use of which was well known and understood by the plaintiff. They were tied together by the employes of the defendant, who were shown to be experienced longshoremen ; and if, as claimed, this work was improperly done, it was the negligent act of the coemployes of the plaintiff.”

Here, as in the case at bar, the defendant had furnished a machine or appliance, requiring adaptation to the work in hand, and which, if properly adjusted, was suitable for the purpose for which it was intended. The work of so adjusting it was an incident to its use, and not an element to its construction, and was properly left by the master to those engaged in using it. Cases of this character are all on the border line.

As was well said in Webber v. Piper, 109 N. Y., at page 490; 16 St. Rep. 423 :

“ The line of division between the duty of the master to furnish and maintain safe and adequate machinery and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description, but is quite obvious when each case, as it arises, comes under consideration.”

We are of the opinion that in the case at bar the defendant had discharged the duty it owed to the plaintiff, and that, if there was negligence in respect to the injury he suffered, it was that of a fellow servant, for which the defendant was not responsible.

Judgment affirmed, with costs.


text:
    Charles H. Becket, Resp’t, v. Edward Place et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Executors — Sureties—Liability.
    The sureties of an administrator are liable for the costs of an accounting imposed by the surrogate upon the administrator personally.
    Appeal from a judgment rendered in favor of plaintiff.

      Foley & Wray, for app’lts ; Geo. W. Glaze, for resp’t.
   Freedman, J.

The facts of this case are beyond dispute. Mary Cuff died in 1880, and thereupon letters of administration were duly issued to Richard Cuff, her husband, upon her estate, by the surrogate of the city and county of New York. In order to obtain these letters, Richard Cuff, as principal, and the defendants, Edward Place and Hugh McRoberts, as sureties, executed a bond conditioned that the said Richard Cluff should faithfully execute the trust reposed in him as such administrator, and obey all orders of the surrogate touching the administration of the estate committed to him. In the course of such administration the administrator was ordered to render an account of his proceedings before a referee appointed for that purpose, and this resulted in a certain report by the referee. Upon due application therefor, the surrogate directed the proceedings to be remitted to the referee for the purpose of allowing the administrator to sustain his claim for expenditures on behalf of certain infants and nextof kin, on condition that the administrator stipulate in writing to pay entire expense thereof personally. The administrator so stipulated, and another reference was had. Thoughout the proceedings for the accounting, the plaintiff acted as the special guardian of the infants referred to, having been duly appointed as such for that purpose. The second reference terminated with a certain report, and in due course of proceedings the surrogate granted a final decree, which was duly entered, settling the accounts of Richard Cuff, the administrator. The decree, among other things, allowed to Charles H. Beckett the sum of $250 as and for his costs as such special guardian, etc., and the said Richard Cuff was ordered to pay the same personally. Richard Cuff having failed to-pay the said sum after due demand, and an execution against his property having been duly issued out of the surrogate’s court to the sheriff, and returned by the sheriff wholly unsatisfied, the present action was brought by the plaintiff against the defendants as sureties upon the administrator’s bond. The question now is whether the imposition of the costs on the administrator personally relieved the sureties upon his bond from liability therefor.

Under section 2557 of the Code of Civil Procedure, the surrogate had the power to impose the costs in question either upon the estate or fund, or upon the administrator personally, as justice required; and, in the exercise of his judicial discretion, he determined that justice required that the administrator should pay them personally, and that the estate or fund should not be charged with them. The defendants claim that such determination relieved them, in respect to such costs, from all liability as sureties upon the administrator’s bond. In support of this claim the defendants cited a number of cases, but on examination they appear to have no application to the case at bar. In Re Silling's Estate, 17 St. Rep. 801, the expenses of the reference were ordered to be paid by the objectors to the probate of the will personally, and such payment was enforced by deducting the amount from their respective shares of the estate in the hands of the executor. In Re Stanton's Estate, 18 St. Rep. 807, the executrix was removed because of the wasteful and improper management of the estate committed to her charge, and for that reason she was ordered to pay person all v the costs of the proceedings taken to remove her. In Re Tacke's Will, 17 St. Rep. 805, the unsuccessful petitioner for the revocation of the probate was ordered to pay the costs personally. In Collyer v. Collyer, 110 N. Y. 481; 18 St. Rep. 210, the unsuccessful petitioner, who had undertaken to establish a will which could not be found, was held personally liable for the costs of the contestants. In Dunford v. Weaver, 84 N. Y. 445, the administrator was charged personally with the fees of auditor appointed to examine his accounts. These cases simply affirm the power of the surrogate to impose costs either upon the estate or fund, or upon, a party or executor or administrator. The existence of this power is beyond question. The case of Matter of Mullon, 74 Hun, 358; 56 St. Rep. 347, involved the liability of an administrator to account for property not included by him in the inventory, and commingled by him with his own property. It does not pretend to comprehend all liabilities of an administrator, and has no reference to administration expenses. Baucus v. Barr, 45 Hun, 582; 10 St. Rep. 683, was an action by an estate creditor against the executor and his sureties. The surrogate charged the executor, in his account, with the amount of a note which executor owed individually to the decedent; and although the executor was insolvent at the time, and had been insolvent at the time of the death of the testator, the surrogate ordered him to apply and distribute the amount of the note as part of the personal estate of the deceased, It was held that his sureties did not, by their bond, guaranty the payment of his worthless debt to the estate, but only guaranteed obedience by the executor to all orders of the surrogate touching the administration of the estate committed to him. The debt of the executor was of no value. It did not go to enchance the estate in fact. It contributed no valuable or available part of the estate committed to him. Moreover, it was held that he (the executor) could not be held in contempt, or as an embezzler, because of his inability to make payment of the note pursuant to the decree of the surrogate, and that it followed that, if not to be held in default when charged with contempt for noncompliance with the surrogate’s order, he should not be held in such default as would be necessary to charge his sureties because of such noncompliance. It thus has been fully demonstrated that the defendants can derive no benefit from any of the cases cited by them. Moreover, the point decided in the case last referred to is the very converse of the proposition that where the usual methods of enforcement of the decree — among them, puishment for contempt — can be resorted to, the sureties of the administrator or executor are liable, and this is precisely what the plaintiff nowhere contends for. In the case at bar it is clear that the administrator can be punished for his contempt, and in fact execution against his property was issued, and returned nulla bona Section 2555, subd. 4, of the Code of Civil Procedure, expressly provides that, if the delinquent has given an official bond, his imprisonment by virtue of proceedings to punish him for contempt, or a levy upon his property by virtue of an execution, does not bar, suspend, or otherwise affect an action against the sureties on his official bond. In the case at bar the second reference was ordered to give to the administrator a further opportunity to reduce, if possible the extent of a liability'which had been reported against him, and he and his sureties had the benefit of h, because the result was a reduction.. This benefit was obtained on condition that the expense of said reference should not be charged against the estate, but should be borne by the administrator personally, and the final decree provides accordingly. This provision of the decree is one touching the administration of the estate, and a noncompliance with it constitutes an official default, within the condition of the bond. In Brewster v. Batch, 41 N. Y. Supr. Ct. 63, it was said that, as to administration bonds, the situation of the parties, and the hazard against which the security was exacted, must be considered, in determining the legal effect of the instrumant. And in Deobold v. Oppermann, 111 N. Y. 531; 20 St. Rep. 81, Ruger, C. J., in delivering the opinion of the court of appeals, uses the following language, viz..

“The decree under which the defendants claim discharge from liability was procured by fraud practiced upon the surrogate, through the presentation of papers fraudulently obtained and used by her (viz. the administratrix). It was against the perpetration •of such frauds that the defendants’ bond was intended to protect the beneficiaries of the estate. The defendants had covenanted that the administratrix should faithfully execute the trust reposed in her, and obey all lawful decrees and orders of the surrogate’s •court. When she obtained, through fraud, the order of the surrogate awarding the moneys of the estate to her, and canceling her bond, she violated the obligations of her trust, and the defendants became liable for the damages flowing from such breach of duty. That the defendants were deceived by the administratrix constituted no protection to them, for they had guaranteed that she should deceive nobody in the administration of her trust. The liability of the sureties is coextensive with that of the administratrix, and embraces the performance of every duty she is called upon to discharge in the course of administration."

Indeed, the general proposition is well settled that the liability of the sureties of an administrator is coextensive with that of the administrator, and that every decree or order of -the surrogate which is binding on the administrator is equally binding on his sureties. Kelly v. West, 80 N. Y. 139 ; Harrison v. Clark, 87 id. 572; Casoni v. Jerome, 58 id. 315. For the foregoing reasons, the claims of the defendants for exemption from liability upon any of the grounds so far considered are untenable.

The further point raised, that all parties connected with the reference, by proceeding as they did, acquiesced in the stipulation filed by the administrator to pay the expense personally, and consented to accept the same as security for the payment of their expenses, and that consequently the defendants, as sureties, are not liable, is equally untenable. The evidence shows that the plaintiff opposed the application for the reference, and that he participated in the subsequent proceedings under legal compulsion. There was no waiver of any right he had against the sureties. Moreover, if the defendants, as sureties, together with the administrator, wish to retain the benefits of the reference, — for the result was highly beneficial to them, — they ought to be made to shoulder with him its burdens. The judgment should be affirmed, with costs.

All concur.


author: Sedgwick, C. J.

text:
    John Hennessey, App’lt, v. Martin Paulsen et al., Resp'ts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Ejectment — Defense.
    In an action of ejectment, it is no defense, under section 1502 of the Code, to an occupant of the premises made defendant that another occupant, claiming a several right in the property, is not made a defendant
    Appeal from a judgment, overruling a demurrer to a part of the answer.

      John Townshend, for app’lt; John Vincent, for resp’ts.
   Sedgwick, C. J.

The action is in ejectment. The complaint, avers that the defendants wrongfully entered into and upon, and took possession of, the lots of land described, etc., and have ever since continued, and still continue, to wrongfully hold and possess the same adversely to the plaintiff. The answer alleged, “for a further and separate defense, that there is a defect of parties defendant hereto, in that at the time of the commencement of this action one John Mulhall was, and now is, an occupant of a part of the premises described in the complaint, as a tenant of one Rachel Duffy, who was, and still is, the legal owner and in possession of the whole of said premises, and neither of said persons has been made a party defendant herein.” To this the plaintiff demurred on the ground that the matter above in the answer was insufficient as a defense. The decision dismissed the complaint. It also adjudged that the action be divided into two actions, with the above-named defendants as parties defendant in one of such actions, and all the remaining defendants as parties defendant in the other of such actions; that the plaintiff be, and he hereby is, allowed to proceed herein, as he may be advised, against such others as are not above-enumerated, as if this action was an original and separate action against them. It will be seen, by section 1516, Code Civ. Proc., that the latter provision of the judgment for a division of actions in ejectment is for plaintiff’s benefit, and the claim for a division is to be made by the plaintiff. Moreover, it is inconsistent with the defendant having final judgment that the complaint be dismissed, as in this case. This part of the judgment should be reversed.

The sufficiency of the answer is placed upon section 1502, Code Civ. Proc.: “Where the complaint demands judgment for the immediate possession of the property if the property is actually occupied, the occupant thereof must be made defendant in the action.” For whose benefit this enactment was made, is a fundamental question. I confine the determination of this to this case as it is. The complaint alleges that the six defendants are in the wrongful possession of the premises. From the course of counsel in the argument, it is to be taken that the defendants were charged as actual occupants of the whole of the premises. The answer avers that John Mulhall is the actual occupant of part of the premises. The question is not what bearing this has upon plaintiff’s right to recover, or the quanity he may recover, but whether, in the absence of Mulhall as a'defendant, the plaintiff can recover- anything. It seems clear that he can. He can recover a judgment against the' defendants for a right to the possession of that part of the premises which they wrongfully occupy, or the whole, according to the proof. It would be the same if Mulhall were a defendant, and if' he established his right to a part the original defendants would not be helped, for they could prove that without his presence. The rights of Mulhall, if he have any, are distinct and separate from those of the original defendants. The presence of either as party defendant is not necessary to the preservation of the full rights of the other. The present defendants could do all by proof that could be done, were Mulhall a party. On the other hand, Mulhall, considered as an occupant, has the legal right to be made a party to any action which .may have the effect of taking his right of occupation. To accomplish that, he must be made a party. In this is the purpose of the section. He is not injured or affected by a judgment against other parties. He has a right several from those other parties. The other parties are not affected by his not being made a defendant. In my opinion,' the section, in a case like the present, is not meant to require that, if one occupant is sued, another occupant not sued, must be made a defendant; but it means that, for an action of ejectment to be valid as to the property claimed, an occupant of that property must be a defendant. It would be a defense for other defendants that they are not occupants, in whole or in part. It would not be a defense that an occupant who claims a several right in the property should be made a party before the action could proceed against other occupants. I therefore think that the section was not made for the benefit of occupants made defendants, but for the benefit of an occupant not made a defendant The decision must be confined to a case where the occupant not a party has a several right. The plaintiff was not bound to make Rachel Duffy, the landlord of Mulhall, a party. Judgment should be reversed,, with costs of the appeal, and demurrer sustained, with costs.

All concur.


text:
    Salvatore Cantoni, Resp’t, v. Elsa Forster, App’lt.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Injunction — Breach on contract.
    A court of equity has power to restrain the breach of a contract, where the injury from a violation of it will be irreparable in damages.
    2. Pleading — Counterclaim.
    A defendant, in all actions in a court of record, is not bound to avail himself, by way of a counterclaim, of an independent cause of action existing in his favor against the plaintiff.
    Appeal from an order, continuing an injunction during the pendency of this action.

      Samuel H. Randall, for app’lt; Charles W. Brooke, for resp’t.
   Freedman, J.

The injunction continued during the pendency of the action by the order appealed from restrains the defendant from suing or prosecuting the plaintiff in any action at law or in equity in violation of the terms of a certain agreement of compromise and settlement made by her with the plaintiff, and particularly from further proceeding in an action brought by her against him in this court, in violation of the terms of said agreement and settlement. The present action was brought in equity to compel the defendant to specifically perform an agreement of settlement and compromise by her entered into with the plaintiff, and for a permanent injunction restraining her from violation of the said contract. If the action will lie as brought, the record before us discloses sufficient ground in support of the order appealed from, and in such case the order may be sustained under sections 603 and 604 of the Code of Civil Procedure. The principal question, therefore, is whether the plaintiff can maintain the action as brought.

The material allegations of the complaint, briefly stated, are as follows :
“ That prior to May 21,1892, the defendant falsely charged the plaintiff to have been the father of certain children by her theretofore begotten, and with having promised to marry her, and with having promised to make substantial provision for her in case of his death; and also that defendant had rendered certain services to the plaintiff as housekeeper. That to avoid scandal and to purchase his peace, etc., the plaintiff, on May 21, 1892, entered into an agreement with the defendant whereby, for a valuable consideration then and there paid to her, the defendant contracted and agreed to release the plaintiff from any and every one of her •claims arising in any manner from any of the matters above set forth, or from any matter, cause, or thing whatsoever from the beginning of the world down to said 21st day of May, 1892, and that ■she should never thereafter sue or cause him to be sued hy virtue thereof.. That thereupon, pursuant to said agreement, the defendant executed, acknowledged, and delivered to the plaintiff a general release under seal. That thereafter, and on 'the 29th day of May, 1892, the defendant began an action in the supreme court against the plaintiff to recover $250,000 damages, on substantially the same ground. That again, to avoid scandal, etc., and irreparable damage, etc., and to buy his peace, etc., the plaintiff entered into another and further contract with the defendant on June 2, 1892," whereby, in consideration of the sum of $6,000 to the defendant then paid, the defendant contracted and agreed that she would not thereafter in any manner communicate with, harass, or annoy the plaintiff by suits at law or in equity, in person, by procurement, or otherwise, by virtue of any claim or claims theretofore made by her ; that the action then begun by her should be discontinued ; and that the plaintiff should be released and discharged from any and all claims, etc. And, in consideration of said sum of $6,000, the defendant further agreed to ratify and confirm her prior general release to the plaintiff, dated May 21,1892; ■and she then and there duly swore to the due execution thereof by her, and that she intended and agreed then and now to be irrevocably bound thereby. That thereafter, on the 9th day of March, 1894, in violation and breach of said agreements of settlement and compromise, the defendant caused another action to be commenced against the plaintiff in this court, upon substantially the same claims as theretofore made and released by her. That in this action she claimed damages in the sum of $170,000. That the said action is at issue and on the calendar of this court, awaiting trial. That the complaint therein is unverified ; and that the answer therein of this plaintiff consists of a general denial, duly-verified. That plaintiff is a member of the New York Stock Exchange, and has conducted the business of banking and brokerage at Nos. 25, 35, and 49 Wall street, in the city of New York, for the last twenty-two years. That he is a member of a number of -clubs, organizations, and exchanges, wherein his character and good repute are of pre-eminent value to him and to his business. That if this defendant is permitted to break and violate her said agreements not to sue this plaintiff, and to be bound and forever barred by the said general release as hereinabove set forth, the prosecution and trial of the said action will produce irreparable wrong, injury, and damage to this plaintiff, to his credit, and to his business, as also to his reputation and feelings; and that the prosecution of said action is against equity and good conscience. That the said injuries will be great and irreparable, and cannot be compensated for in money. Wherefore plaintiff prays judgment that the said defendant, her agents, attorneys, and servants, be forever enjoined and restrained from prosecuting the action commenced and now pending in the superior court in the city of New York against this plaintiff; and also from bringing or prosecuting any other action or proceeding against this plaintiff, at law or in equity, upon any alleged right, claim, or demand whatsoever accruing or accrued, or so claimed by her to be due and owing by plaintiff to said defendant, Forster, prior to June 2, 1892, the date of said agreement and general release, and that as to any and all of the said .alleged claims or demands so accruing, or claimed to be so accrued, this court declare the said general release and agreement a perpetual bar; and from in any manner persecuting, harassing, importuning, communicating with, or annoying the plaintiff, etc.”

The defendant contends that upon this complaint the plaintiff cannot obtain, as final relief by judgment, a perpetual injunction restraining the prosecution of her action in this court, for the reason that it fully appears that the plaintiff has an adequate remedy at law by pleading his alleged agreements and releases as a bar to said action, and that, therefore, plaintiff’s complaint does not state facts sufficient to constitute a cause of action.

It may be conceded that, as an abstract proposition, it is true that a court of equity will not restrain an action at law when the question is the same at law and in equity, and, furthermore, that the fact that the plaintiff failed to plead in defendant’s action the defense in bar now disclosed does not entitle him to injunctive relief in the present action, because the court has the power, on his motion, to permit him to amend his answer in defendant’s action by adding the defense in bar. The difficulty with defendant’s contention is that the facts set forth in plaintiff’s complaint are sought to be made available not only for the purpose of defeating defendant’s action, but also for the purpose of preventing the institution of future actions or proceedings, or the threats of any, and thus to make further annoyance impossible. The action of the plaintiff is in the nature of one for the specific performance of a covenant, and the principal final relief sought to be obtained is an injunction, the violation of which would render the defendant liable to be punished for contempt. The power of a court of equity to restrain the breach of a contract where the injury from a violation of it would be irreparable in damages is well settled. 10 Am. & Eng. Enc. Law, pp. 937-942, and eases there cited. And the tendency in this country is to extend the equitable jurisdiction to all cases in which either of the parties is fairly entitled to a more perfect relief than he can get at law. Wat. Spec. Perl § 16. The case of Sampson v. Wood, reported in a note to Carpenter v. Keating, 10 Abb. Pr. (N. S.) 223, is on all fours with the case at bar, and in it the right to injunctive relief was upheld.

Beach on Injunction (ed. 1895, § 567) says:

“Thus, if a person, in disregard of his agreement to execute certain releases, brings an action on the claim which was agreed to be released, the defendant is entitled to have the action restrained, and to a decree for the specific performance of the agreement to release.”

And in support of this proposition he cites Baker v. Hawkins, 14 R. I. 359, which, on examination, will be found a well-considered case.

In Deen v. Milne, 113 N. Y. 303; 22 St. Rep. 620, where a stipulation between the parties to discontinue an action in the marine court, and that a judgment therein should be discharged and vacated of record, had been lost, it was held that the judgment debtor could maintain an action to establish and compel the specific performance of the contract, and that, assuming such debtor had a remedy by motion in the marine court, this was no defense to the action.

Many other analogous cases could be referred to, but the authorities already cited sufficiently demonstrate that the plaintiff has shown more than a mere defense to defendant’s action, and that he may claim independent equitable relief.

The question, then, remains whether the defendant’s action having been first commmenced, the plaintiff, under our Code practice, was bound to set his claim up in that action by way of a counterclaim. This question must be deemed to have been determined in Brown v. Gallaudet, 80 N. Y. 413, where it was expressly held that the defendant, in all actions in a court of record, is not bound to avail himself by way of counterclaim of an independent cause of action existing in his favor against the plaintiff, and that the rule in this respect was not changed by the Code. There has been no change in the Code since that time prescribing a different rule.

The other points raised by the brief of appellant’s counsel do not require special notice. The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


author: McAdam, J.

text:
    Newbury H. Frost, App’lt, v. Akron Iron Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Landlord and tenant — Holding over.
    The right of a landlord to regard a tenant, who holds over, either as a trespasser or as a tenant from year to year, is not affected by the fact that the holding over was involuntary on the part of the tenant.

      Appeal from a judgment entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial.

      C. W. West, for app’lt; W. F. Scott and W. F. Upson, for resp’t.
   McAdam, J.

The action is by the plaintiff, as landlord, to recover from the defendant, as tenant, one quarter’s rent of the store and basement Mo. 122 Liberty street, under a demise thereof alleged to have been made to the defendant for the term of one year from May 1, 1892, at the rental of $4,000, payable quarterly. The proof that the parties made the agreement alleged is furnished by the following facts : The tenant’s term under a prior lease expired on May 1,1892, and it thereafter held over and continued in possession of the premises, after notice by the landlord that if it remained in possession after May 1, 1892, the rent would be $4,000 per annum. The lease which expired in 1892 was made by one Grill as landlord; was for three years and four months from January 1, 1889, at the yearly rent of $1,800, payable quarterly; and was assigned by Grill to the plaintiff, February 17, 1892, on which day the latter became the owner of the property. The lease from Grill was from January 1, 1889, and according to the presumed intention of the parties, expired May 1, 1892 ; and, that day falling on a Sunday, the tenant had until twelve o’clock noon on the following day to move from the premises. The tenant commenced to move on May 2d, and continued moving on May 3d, when it delivered the key to the plaintiff, who said he would hold the defendant for the rent. There was no acceptance of surrender by the landlord. The defendant left upon the premises a number of fixtures and articles, valued at about $100, which it said it would abandon to the landlord, but which the latter declined to take. The tenant undertook to show permission from ■one Cox to remain over after May 2d, but there was no proof of authority on the part of Cox to bind the plaintiff to any such agreement. At the conclusion of the case, both parties asked for the direction of a verdict. The trial judge directed the jury to find for the defendant, and from the judgment entered on such direction, and the order denying motion for a new trial, the appeal is taken.

That the acts of the defendant amounted to a wrongful holding over is clear." It was its duty, as tenant, to quit and make full surrender of the premises to the landlord on May 2d. Mot having done so, it became the right of the plaintiff to treat it either as a trespasser or as tenant for another year, and he elected the latter course, Haynes v. Aldrich, 133 N. Y. 287; 45 St. Rep. 243 ; Schuyler v. Smith, 51 N. Y. 309; Shanahan v. Shanahan, 55 N. Y. Supr. Ct. 389 ; Adams v. City of Cohoes, 127 N. Y. 175, 182; 38 St. Rep. 678 ; Frank v. Railroad Co., 122 M. Y. 197, 218 ; 33 St. Rep. 235. The tenant holding over has no election in the matter. It is not for him to say whether he will occupy the relation of a wrongdoer or of a tenant; but the right of election belongs exclusively to the landlord, and his election binds the tenant, whatever the tenant’s intentions may have been, and although the-landlord knew what his intentions were before the time expired. 1 Wood, Landl. & Ten. (2d ed.) 33.

In Witt v. Mayor, 28 N. Y. Supr. Ot. 261, the court said :

“ It is no valid excuse for the holding over to say that the defendants were engaged in removing their, goods, and consumed no more time in such removal than was necessary for that purpose. Without enlarging upon the evils to which incoming tenants, as well as landlords, would be subjected by a rule of law that should permit- such holding over, it is enough to say that no-such rule exists in this state; but, on the contrary, the statute provides, in effect, that in case a tenant shall continue in possession a single hour after the expiration of his term, the landlord may eject him and his goods by a prompt and summary proceeding?’

In Haynes v. Aldrich, supra, .the court said:

“ The act of the defendant in holding over has given the plaintiff a legal right to treat him as a tenant, and it is not in his power to throw off that character, however onerous it may be. The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only where the tenant holds over voluntarily, and for his own convenience, that the landlord’s right arises, and that, it does not so arise when the-tenant holds over involuntarily, not for his own convenience, but because he cannot help it. I am adverse to any such qualification. It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a new tenant.-”

The result follows that the plaintiff was entitled to a verdict, and at the increased rate stated in the notice. Despard v. Walbridge, 15 N. Y. 374; Mack v. Burt, 5 Hun, 28.

The judgment and order must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


text:
    N. Taylor Phillips et al., App’lts, v. Kate R. Wilcox et al., Def’ts. In the Matter of the Application of Townsend Wandell, Resp’t.

      (New York, Superior Court, General Term,

      Filed May 6, 1895.)

    Mortgage — Foreclosure—Purchaser.
    A purchaser on a foreclosure sale will be relieved from his purchase where, though the title to the mortgaged premises came through a will, neither the remaindermen under said will nor the testator’s heirs were made parties defendant in the action.
    Appeal from an order, granting the application of the purchaser to be relieved from his purchase on a foreclosure sale.

      Edwin B. Smith, for app’lts ; Thomas W. Butts, for resp’t.
   Sedgwick, C. J.

The respondent had purchased at a sale in foreclosure of a mortgage of real estate. He afterwards made a motion to be relieved from purchase. An appeal is now taken from the order made, which relieved him. There were 'several objections made to the title which the referee would give if the sale were carried through. The answer to most of these objections ivas that the respondent knew their existence and their character before he bought, and, therefore, that he could not claim relief. This position will not be passed upon here. It is unnecessary, for there was one defect, which was the want of proper defendants in the action. This want he had not learned at the time of the sale, and he was not bound to make himself acquainted with it. The title came through the will of Benjamin Albro. He devised the property to his executor and executrix, in trust to collect the rents and profits, and pay them over to certain persons, five in number, annually. The fourth provision is: “Upon the death of said Edith 0. Polhemus, one of the beneficiaries that had been named, I give and devise and bequeath all of the said property and estate so devised to said trustees, and direct said trustees to convey the same to the following named four children of said Edith C. &■ Abraham Polhemus, Junior, viz., Ellen Augusta, Remona Leonora, Abram Clifford, and said Benjamin Albro, etc., etc., subject, however, to the said trust and right to said trustee to receive the said rents, issues, and profits ” for the purposes of the trust that had before been made in the will. If the will were valid, at least the remaindermen, under the fourth clause, should have been made parties defendant; or if the will were invalid as to its disposition of the remainder, then the heirs at law of the testator should have been made parties. The only executor and trustee who qualified under the will was Ellen H. Wilcox. She was made a party defendant here. She, as trustee, had conveyed the property to one Kate R. Wilcox. The conveyance was without consideration. It was accompanied with a verbal agreement that Kate R. Wilcox should forthwith reconvey to Ellen H. Wilcox, as trustee. While the paper title was in Kate R. Wilcox, she gave to the present plaintiffs the mortgage in action. It is, at least, doubtful that Ellen C. Wilcox had power under the will to convey. It is, at least, doubtful that the plaintiff took the mortgage without notice of the character of the transaction of the conveyance. The property, after the giving of the mortgage, was reconveyed to Ellen H. Wilcox, and again reconveyed to her by Kate R. Wilcox. On the whole, the petitioner had the right to take the position that it was doubtful whether Kate R. Wilcox had ever had any title in the premises, and that Ellen H. Wilcox was the legal owner, if the will were valid. Under these circumstances, irrespective of notice to petitioner of certain defects, he had°a right to object, as has been before stated, that proper parties had not been made defendants. The disposition of the question of costs was correct. The plaintiffs were responsible for the nonjoinder of the proper parties, and the purchaser was without fault.

Order affirmed, with $10 costs and disbursements.


author: Per Curiam.

text:
    Patrick O’Connor, as Administrator, etc., App’lt, v. Herman Schnepel, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Negligence — Contractor.
    A landlord is not liable for injuries to the tenant's son, caused by the negligence of a contractor engaged by the landlord to repair the premises, where he has a right to believe that the work will be done in a proper manner.
    Appeal from a judgment dismissing the appeal.
    It appears that on November 1, 1898, while a chimney on premises owned by the defendant was being repaired by his contractor, soot and other substances came down the chimney and filled the plaintiff’s room with quantities of sooty vapor, and by reason of the shock and inhalation of such matter the plaintiff’s son, who was ill at the time, died shortly thereafter. It also appears that the defendant was the landlord of the property, that the decedent’s father was his tenant at the time of the accident, and that the injuries were sustained while defendant’s property was undergoing repairs. The trial judge dismissed the complaint upon the opening of plaintiff’s counsel, and from the judgment entered on such dismissal the present appeal is taken.

      L. W. Redington, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Per Curiam.

From all that appears on the record, the defendant was not charged with any negligence himself. The complaint avers that certain servants or employes were engaged in repairing the chimney, and that, through the negligence and carelessnes of the said servants or employes while in the pursuit of their employment, great quantities of soot or other substances or matter from said chimney fell with great force down the said chimney or flue into plaintiff’s stove, filling his room with said soot, dirt, and smoke, causing flames to burst out from said stove into said room or rooms, in consequence of which the intestate received a great shock, was compelled to inhale great quantities of said soot and of gas, sooty vapor, smoke, and flames ; and as a result of such injuries, and of said shock and said inhalation, said intestate died shortly afterwards. The action is not placed upon any duty of defendant as landlords to use diligence to prevent such an accident. If there be such duty, it is not specified in the complaint. On the trial it was admitted that the work done in the chimney was done under a contract with the defendant, and that the negligence which caused the soot to fall was that of the contractor or his servants. This statement shows that the doing of the repairs, if they were not negligently made, could not have involved any liability upon the landlord for the soot. He had a right to think that the work would be done in a proper manner. Under the circumstances, we find no error; and the judgment appealed from must be affirmed, with costs.


text:
    Adlen C. Dalzell, Resp’t, v. Fahy’s Watch Case Company, App’lt.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Reference — Compulsory.
    In a common law action, a reference will not be ordered where it does not appear that the examination of a long account will be necessary
    Appeal from an order, granting a motion for a reference.

      Wilber Oldham, for app’lt; Wetmore & Jenner, for resp’t.
   Freedman, J.

The motion papers, upon which the plaintiff an to a to hear and determine the same, fail to show that the trial of the issues will require the examination of a long account. The character of the action has to be determined from the complaint, and the complaint sets forth a common law action only. For these reasons the motion for a reference should have been denied. There was no power to compel a reference against the objection of either party. The motion was really and avowedly made by the plaintiff, however, to obtain, by means of a reference, a discovery arid inspection of defendant’s books. A motion for such discovery and inspection had therefore been made by the plaintiff, and denied by the special term, and the order denying that motion had, on plaintiff’s appeal, been affirmed by the general term of this court. In the struggle over this attempt ón the part of the plaintiff to accomplish indirectly what had been denied to him on his direct application, the learned judge who heard the motion for a reference was induced to make an order granting such motion, unless the defendant make and serve a stipulation in writing that the cause be tried at special term, and denying the motion if the defendant so stipulate. The defendant did so stipulate. The plaintiff then appealed from the order on the ground of want of power in the court to compel a trial of the issues at special term. The counsel for the respondent, in the brief submitted on this appeal, has conceded that, if the plaintiff desires a trial by jury, he can still have it; that the stipulation signed by the defendant does not bind the plaintiff; and that the utmost effect of the stipulation is to give the plaintiff an option to try the case at special term. Under all the circumstances, it is clear that there was neither power to refer nor power to compel a trial at special term. The order appealed from should be reversed, without costs, and plaintiff’s motion for a reference denied unconditionally, without costs.


text:
    Salvatore Cantoni, Resp’t, v. Elsa Forster et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Trial — J ury — Equity.
    A trial by jury will not be granted in an equity action, because it will probably involve a conflict of evidence'.

      Appeal from an order, denying a motion for an order settling issues for trial by jury.

      Samuel H. Randell, for app’lts; Charles W. Brooke, for resp’t.
   Per Curiam.

The order should be affirmed, with $10 costs and disbursements, upon the opinion filed below.

The action is of purely equitable cognizance, and the framing of issues therein entirely matter of discretion. The defendant is not entitled to a jury trial, either by constitutional considerations,, or those flowing from express provisions of law, and no right is violated by the denial thereof. Colie v. Tifft, 47 N. Y. 119 ; Colman v. Dixon, 50 id. 572 ; Powell v. Waldron, 89 id. 328; Wright v. Nostrand, 94 id. 31; Carroll v. Deimal, 95 id. 252 ; Acker v. Leland, 109 id. 5; 14 St. Rep. 23; Randall v. Randall, 114 N. Y. 499 ; 23 St. Rep. 845 ; Lynch v. Railroad Co., 129 N. Y. 274; 41 St. Rep. 541; Shepard v. Railroad Co., 131 N. Y. 215; 43 St. Rep. 117; Church v. Kelsey, 121 U. S. 282; Cattle Co. v. Mann. 130 id. 69; Cates v. Allen, 149 id. 451. If the action were to be ordered on the jury calendar solely because it would probably involve a conflict of evidence, it is difficult to imagine a cause which ought to be retained on the equity calendar; for, aside from the demurrers, every trial thereat involves more or less conflict. Especially is this true in suits to set aside transfers as fraudulent, elevated railway controversies, and the like. There is nothing in the present contention which necessitates 'calling in the aid of a jury, or which even suggests that a decision equally speedy and as satisfactory could not be reached without such assistance. For these reasons the defendant’s application must be denied, with $10 costs.