author: O’Brien, J. Van Brunt, P. J.

text:
    George P. Rowell et al., Resp’ts, v. Henry Moeller, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Pleadings—Amendment.
    The court has power to allow an amendment to a complaint which sets up a different cause of action, though the causes of action are legally distinct, where the purpose of both is the same.
    2. Same—Limitation.
    It is not an abuse of discretion to allow an amendment setting up a cause of action that is barred by the statutes of limitations.
    Appeal from an order granting plaintiff’s leave to' amend the complaint.

      Thomas McAdam, for app’lts; Philip Carpenter, for resp’t.
   O’Brien, J.

The action was brought to charge the defendant as a stockholder of a corporation, on the ground that no certificate of full payment of the stock was ever filed, and that such stock was not full paid. While the original complaint contained an allegation that no certificate that the stock was full paid had been filed, there was no allegation that the stock was not full paid in property, nor did it contain a statement of how much stock, if au}r, the defendant owned. The order appealed from granted leave to amend the complaitít in these particulars. It will thus be seen that the question presented is identical with the one considered in Rowell v. Janvrin, 69 Hun, 305; 53 St. Rep. 312, wherein this court held that' it was error to permit such an amendment, saying:

The cause of action sought to.be set up by the amended complaint was entirely independent of, and had no relation to, that which had been alleged in the original complaint. In the original complaint a liability of a stockholder was sought to he enforced because of the failure to file a certificate that the whole of the capital stock had been paid in, under sections 10 and 11 of the manufacturers’ act (chapter 40 of 1848). By the amended complaint? a liability upon the part of the stockholder was attempted to be set up, arising from the provisions of section 14 of the same act, in reference to the purchase of property and the issuing of stock therefor. Those were distinct independent grounds of a recovery, the only common feature being that in each-the defendant was sought to be charged as a stockholder.”

An appeal from this decision was dismissed by the court of appeals. 138 N. Y. 656; 53 St. Rep. 931.

Unless there is some later authority,"this sÜould be.controlling- and decisive upon this appeal. We arc referred for such an authority to the case of Deyo v. Morss, 144 N. Y. 216; 68 St. Rep. 80. At special term a motion was therein made to strike out the amended complaint on the ground that it set up a different cause of action, which motion was denied. The general term reversed the special-term order, and the court of appeals reversed the general term, and, after adverting to the fact that the view of the general term was that the court had no power to authorize an amendment which changes the cause of action, say :

“ Whether an amendment of a pleading shall be allowed in such a case is, in general, a matter of discretion in the court. The general term has a right to review the "exercise of "such discretion by the special term, and its order made in the exercise of this power of review could not be reviewed here." * * * The case therefore depends on the power of the special, term to authorize an amendment before trial of a complaint, so as to permit a substitution of a different cause of action from that originally alleged. We think this question was, in principle, determined in the case of Brown v. Leigh, 49 N. Y. 78. * *■ * The power of the court to grant or deny the relief, or to impose such terms as justice may seem-to require, is an adequate protection against hn oppressive exercise of the power. To deprive the court of this power would in many cases result in injustice, and encourage litigation. The present case is an illustration. The causes of action were legally distinct, but the purpose of both complaints was to-compel the application of the decedent’s property to the payment of his debts.”

This case must be regarded as effecting a sweeping change in the practice relating to the amendment of pleadings. The whole current of authority at general and special terms was against the power of the court to allow an amendment to a complaint which set up a different cause of action. 1 Examples of such decisions are Deyo v. Morss, 74 Hun, 224; 56 St. Rep. 364: Vrooman v. Jackson, 6 Hun, 326; Craig v. Hyde, 24 How. Prac. 313; and in this category we must place the case of Rowell v. Janvrin, 69 Hun, 305; 53 St. Rep. 312. It is true that in the latter case neither in the order nor in the opinion of the general term is the decision expressly placed upon the want of authority in the court to allow such amendments, but it is quite evident from a reading of the opinion that such was the view of the court. The fact that it was not placed expressly upon the ground of want of power may account for the dismissal of the appeal to the court of appeals.

As Deyo v. Morss, supra, is authority, therefore, -for tlie proposition that the special term has power td grant leave to amend, the question now presented is whether such power was properly exercised. It is insisted thdt the amendment should have been refused because, the cause of action set up in the amended complaint is barred by the statute of limitations, and therefore the court neither has the power to, nor should it in the exercise of its discretion, allow the amendment; and in that connection we are referred, to the case of Quimby v. Claflin, 27 Hun, 611. There the general term said:

“ The order appealed from gave leave to the plaintiff to amend his complaint by adding, as a third cause of action, a further claim against the defendant of thirty-four thousand dollars. The claim was barred by the statute of limitations. ' We are of opinion that the order was unauthorized.”

It will be noticed in that case that an additional or third cause of action was sought to be pleaded, and the attention of the court was directed to a consideration of whether that should be allowed, and we think it was very properly answered in the negative.

In principle, the case is more like that of Elting v. Dayton, 67 Hun, 425 ; 51 St. Rep. 439. There a judgment for the plaintiff in an action to recover payment for work done under a contract which was, by its terms, to be completed by a certain date, was reversed and a new trial ordered, on the ground that as the complaint alleged performance, and did not aver an extension of time, and as it was found on the trial that the work was not completed by the date agreed upon, the plaintiff could pot, without an amendment of the complaint, recover on the theory that strict performance had been waived. The amendment was there allowed upon the opinion, from which we quote:

“ It is said" by the counsel for the respondent that the amendment should not be allowed, because a new suit on the cause of action would be barred by the statute of limitations. Although some loches has been shown on the part of the plaintiff, the fact that the statute of limitation has run against a new action is a strong reason .for granting, instead of refusing, the relief.”

See, also, Eighmie v. Taylor, 39 Hun, 366.

The special term therefore having the power, in a proper case, to allow the amendment, the question being one calling for the-exercise of its discretion, and as, upon the showing here made, we cannot say that such discretion was improperly exercised, we think the order should be affirmed, with $10 costs and disburse-ments.

Follett, J., concurs.

Van Brunt, P. J.

I dissent.. The discretion of the court was not properly exercised. There was no excuse offered, and, unless in every case an admendment is to be allowed as matter of course, this motion should have been denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Americus F. Callahan, Resp’t, v. Moses R. Crow, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Parties—Assignment.
    Upon the assignment of a negotiable promissory note, the, assignee becomes the real party in interest and it is immaterial how much he paid for the note.
    2. Principal and agent—Delivery.
    The delivery of property t) an authorized agent is delivery to the principal.

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

      Franklin Bein, for app’lt; O. M. Bovee, Jr., for resp’t.
   Per Curiam.

This action was begun April 4,1894, to recover the amount due on a promissory note of which the following is a copy:

“ 8,750 Dolls. New York, June 2nd, 1892.

“ One year after date I promise to pay to the order of Dennis Long, Samuel A. Miller, and George J. Long, thirty-seven hundred and fifty dollars and interest at six per centum per annum,. for value received, I having deposited with this obligation, as collateral security, twenty bonds of one thousand dollars each, of the president and directors of the Grand Rapids Hydraulic Company, numbered, respectively, 227, 228, 514 to 519, both inclusive, 531, 532, 533, 555, 534, 535, 536, 594, 595, 381,382, 384—bonds numbered 531 to 536, both inclusive, having January, 1890, and subsequent coupons on — and four bonds, of. one thousand dollars each, of the New York City District Water Supply Company, with authority to sell the same without notice, either at public or private sale or otherwise, at the option of the holder or holders hereof, on the nonperformance of this promise, he or they giving me credit for any balance of such sale remaining after paying all sums due from me to the said holder or holders, or to his or their order. “M. R. Crow.”

This note was given in consideration of the following contract :

“Whereas Dennis Long and Company are the owners of bonds of the president and directors of the Grand Rapids Hydraulic Company, amounting in face value to twenty thousand dollars, and numbered respectively, 227, 228, 514 to 519, both inclusive, 531 to 536, both inclusive, 594, 595, 381, 382 and 383 — bonds numbered 531 to 536, both inclusive, having January, 1890, and subsequent coupons on, and the others having July, 1889, and subsequent coupons on; and whereas the said Dennis Long & Company have made a certain request, as the holder of said bonds, to the American Loan & Trust Company, of Boston, trustee, to foreclose the mortgage securing the said bonds; and, whereas, Mgses R. Crow, of New York, is desirous of acquiring the title to said bonds:

“Now, therefore, in consideration of the premises, and of one dollar and other good and valuable considerations paid by the said Crow to the said Dennis Long & Co., .receipt of which.is hereby acknowledged, the said Dennis Long & Co. do assign and transfer to the said Moses R. Crow all their right, title, and interest in and to the said bonds, provided, however, that the said Crow agrees to indemnify and hold harmless the said Dennis Long & Co. from all liability incurred by them by reason of joining in said request to foreclose.

“ In witness whereof, the said Dennis Long & Company and the said Moses E. Crow have severally set their hands and seals this second day of June, A. D. 1892, to this instrument and to ■another of like tenor.

“M. E. Crow. „ ' [seal.]

“Dennis Long & Company, [seal.]

The defendant does not deny the execution of the note, nor of the contract. March 12, 1894, two of the payees and the executors of the third payee assigned this note and the collateral accompanying the same by an instrument in writing to the plaintiff. The defendant, in his answer, set up six defenses: (1) lie denied the assignment; (2) that the plaintiff was not the real party in interest; (3) that the plaintiff was not the holder of the note for value, but took the same after maturity, paying no consideration therefor; (4) that the note had been paid; (5) that the consideration of the note had "wholly failed; (6) that the payees had not ■delivered to the defendant the bonds for which the note was given.

The assignment of the note was proved beyond question, and the plaintiff was the real party in interest, and it was quite immaterial how much he paid for the note. If it were given to him, his right of action thereon was as perfect as though he had paid the full amount of the note, with interest, to the payees. The plaintiff conceded on the trial that he took the note .after it fell ■due, and that it was subject to all the defenses that might have been interposed to an action brought thereon by the payees. There was no attempt made on the trial to show that the note had been paid. This.disposes of the first four defenses.

The fifth and sixth defenses aré substantially the same, and in support of them the defendant testified that he had never received the bonds described in the contract and in the' note. It was undoubtedly true that the bonds were not delivered to the defendant personally, but it was proved beyond dispute that the contract entered into was negotiated by Stanton D. Loring, of Boston, in behalf of the defendant, to whom the bonds were sent, and they, with the defendant’s note, were returned by Loring to the payees. "The delivery to Loring, who negotiated the contract for the defendant, was equivalent .to a delivery td him, and so the defense that the consideration had failed was not established. The defendant was not in a position to show, and did hot attempt to show, that the bonds were not an obligation of the corporation which issued them, for he was the president of that corporation, and signed the bonds. It may be that the defendant made a bad bargain, but that is not is. not a good defense to the action on the note.

The judgment and order should be affirmed, with costs.


author: O’Brien, J.

text:
    Charles E. Jackson et al., Resp’ts, v. Builders’ Wood-Working Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. ©ontracts—Construction.
    As between two constructions of a writing, other things being equal, that one should be adopted which is most "unfavorable to the party who formulated it.
    2. Same.
    Where the writing is only part of the contract and paroi evidence admissible to establish the whole contract, the written portion not being contradicted but only explained, the court must examine such evidence as bear upon the subject-matter, the relation of the parties, and their acts- and declarations, so as to enable the court to put itself in the place of the contracting parties, and to determine what was the contract between them.
    3. Evidence—Written contract.
    In an action to enforce.a written contract, it is error to permit plaintiff and others to testify to a conversatipn which took place between themselves at the time the contract was made though? the treasurer of defendant was sitting at a desk, in a position where, if he desired, he might possibly have heard the conversations, in the absence of any proof that the defendant took part in, heard, or assented to them.
    Appeal from a judgment in favor of plaintiffs. *

      Frank H. Field, for app’lt; Wallace Macfarlane, for resp’t.
   O’Brien, J.

The defendant was indebted to one Stone, representing himself and the firm of' B. B. James & Co., in the sum of $2,102.65. With knowledge that some of the defendant’s nptes had gone to protest, and-in anticipation of the failure of defendant, Stone and Harris, one of the firm of B. B. James & Co., eame on from Boston, and, together with the plaintiff Jackson, a lumber dealer, went, on November, 12, 1892, to the defendant’s factory in Brooklyn, where they remained during the day, endeavoring to arrange a settlement by a sale to Jackson of a sufficient amount of moldings to cover the .indebtedness to Stone and E. B. James & Co. of $1,102.65. After negotiations had lasted through most of the day, an agreement was reached by the parties, a memorandum of which, in writing, was drawn by Harris, reading as follows:

“Brooklyn, N. Y, Nov. 11th, 1892.
“C. B. Jackson & Co., Paterson, N. J., to Builders’ Wood-Working Co., Dr.
“Lot of moldings, being all those in both molding rooms at our manufactory, described in our inven- , tory of Oct. 2, 1892, as of to-day, f. o. b. cars Brooklyn........... ■........................ $2,018 00”'
Upon this bill the defendant wrote the following:
“Messrs."C. E. Jackson &. Co.: Please pay the amount of the above to F. 0. Stone. Builders’ Wood-Wkg. Co.,
“Jas. R. Ferine, Treas.”
And the plaintiffs thereupon wrote the following acceptance:
“We hereby accept the above order.
“11-12-92. Chas. E. Jackson & Co.”

Stone then surrendered to the defendant its obligations, and on or about the 14th day of November, 1892, and before delivery of any of the moldings, plaintiffs -paid to Stone, as requested by defendant, the sum of $2,018. Thereafter, and between November 15 and December 29, 1892. the defendant shipped and the plaintiff received four car loads of moldings. While not admittingnor disputing the fact that’all the goods in both molding rooms were included in the delivery, the plaintiffs, after measuring the moldings delivered, and finding that they amounted to less than two-thirds of the quantity and value stated in the inventory, made a demand upon the defendant to supply the short shipments, or to pay back the difference between the full inventory price paid by them and the inventory price of the quantity delivered. This balance amounting to $829.11, was the amount sued for, and for which a recovery, was awarded by the referee.

It will thus be seen that the plaintiffs contend that the mouldings were sold according to the inventory, and that the agreement was that they should receive the full inventory quantity; while the defendant contended that the sale was in bulk of such mouldings as then were in the moulding rooms, without reference to the inventory, and that the memorandum drawn by Harris expressed the contract. In determining which contention is right, resort must be had to the written memorandum, and if clear and explicit in terms, then under well-settled principles of law, paroi evidence would not be admissible to vary or contradict it. The ambiguity in the written memorandum, if any, is created by the use of the words, “ as of to-day,” which, the déféndant claims, means “as found in the moulding rooms to-day,” and which the plaintiffs claim, means that the inventory should be made good as of to-day. In other words, the plaintiffs claim that that the phrase “as of .today," instead of meaning the mouldings described in the inventory as they exist to-day, was intended to be a warranty that, if there was not as much now as described in the inventory, the defendant would make the difference good. As between these contentions, and irrespective of any contemporaneous paroi evidence we should be inclined to "adopt the defendant’s version, because taking the form of the memorandum, if it was intended to be a sale of mouldings, not in bulk, but according t'a an inventory; which so far as it,was taking in quantity was to be made good, then the language used was most inapt and ill chosen.

This view is strengthened when we recall the rule, applicable to the construction of a writing, which requires that as between two constructions, other things being equal, that should be adopted most unfavorable to the one who formulated it, or as it is exr pressed, most strongly contra proferentem, i. e. against the author of it. j Here it is conceded that it was written by Harris, who, with Jackson and Stone, made up the party that was endeavoring to obtain from the.defendant some benefit.

Assuming, however, as the referee did, that the writing in question was only part of the contract, and that paroi evidence was admissible to establish the whole contract, the written portion not being contradicted, but only explained, then we must examine such as bear upon the subject-matter the relation of the parties, their acts and declarations, to enable the court to put itself in the place of the contracting parties, and to determine what .was the meaning of the language used and what was the contract between them.

The testimony shows that the subject-matter of the contract was the sale of a lot of mouldings to Jackson with a view to satisfying the claim, held by Stone, which the latter was anxious to have adjusted, anticipating the insolvency of the defendant. The plaintiff Jackson went with Stone and Harris to the factory of the defendant in Brooklyn on the day stated. There they examined a large quantity of these mouldings, which were in the moulding rooms in the factory, and were shown defendant’s inventory of the mouldings. It appeared that this inventory had beeiimade about October 2d, nearly six weeks before the purchase. Jackson noticing this, asked the defendant’s treasurer, Ferine, about the quantity of mouldings that was still in the rooms as compared with the inventory, and also at what price they were inventoried. Ferine replied that, while they had sold some mouldings since the inventory was made the additions from new stock manufactured by the defendant would in his opinion, offset the sales, and that the quantity then in the moulding rooms was fully equal to that stated in the the inventory, and his foreman, when questioned on the subject, at Ferine’s instance, made the same statement. Then the question'was presented, what would result if the quantity delivered fell short or was in excess of that stated in the inventory? Plaintiffs’ testimony was that Ferine agreed that if it fell short the shortage was to be made good, and that for any excess the plaintiffs were to pay.

.This statement as to shortage and excess was flatly contradicted by Ferine, who testified that the only proposition that he entertained, and the only contract that he made, was a sale in bulk. That there was a discussion about what was to result in the event of a shortage or excess, between Jackson, Stone, and Harris, while engaged in examining the mouldings in the rooms, or while in the outside office, is evident.- But it is by no means so clear that any of this conversation was in the presence of the defendant’s agents, other than what has already been referred to a statement by Ferine that since the making of the inventory some mouldings had been sold, and in his opinion, the new mouldings manufactured and placed in the rooms would replace what had been sold and removed.

If we construe so much of the contract as is written in the light of some of the surrounding circumstances and some of the acts of the parties, it militates against the view that this was a sale according to a guaranteed inventory. Thus, we have the fact that the insolvency of the defendant was anticipated, it being problematical, in such an event, if the sale had been -made by inventory and a shortage resulted, whether the defendant would have been able to make it' good. In addition, we have the further fact that after the agreement, whatever it was, between the parties, Stone immediately surrendered to the defendant its obligations, and thereafter, and before the delivery of any of the mouldings, the plaintiffs paid to Stone the amount of the agreed price. As against tlie force and weight to be attached to these circumstances, supported by the evidence of the defendant’s treasurer and the man in charge of the moulding rooms, we have the positive statements of Stone,'Harris, and Jackson that the contract between the parties was a sale, by the terms of which the plaintiffs were to receive the full inventory quantity. Their testimony had a controlling influence on the mind of the referee, and if incompetent as against the defendant, it cannot be regarded as harmless. ,

This brings us to a consideration of the objection, made by the defendant, which we regard as fatal to this judgment. Under objection and reception, these three witnesses were allowed to testify as to their understanding of the words “ as of to-day.” It is not claimed that the conversations in which such understanding was reached were joined in by the defendant’s treasurer, though an attempt was made to show that the latter was sitting at his desk in an inside office, and could have heard the conversation. These three witnesses were in constant communication during the whole day, examining the moldings, discussing between themselves the kind of memorandum that should be drawn, and there was no duty on the part of the defendant’s treasurer to obtrude himself into or listen to such conversations when not addressed to him; and it would be going very far to hold, because they were thus engaged in conversation during the greater portion of a day, that the defendant is bound, because its treasurer was sitting at a desk, in a position where, if he desired, he might possibly have heard the conversations. We think that the admission of evidence of such conversations, in the absence of any proof that the defendant took part in, heard, of assented to them, was error, and entitles the defendant to a new trial.

The judgment, therefore, should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: "Van Brunt, P. J.

text:
    Abraham Lindo et al., Resp’t, v. Matthew T. Murray, as Executor, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Powers—Sale op land by executor.
    An absolute and independent power, given to the executor to sell all or any portion of the real estate at such times, in such manner, and upon such terms as he, in his judgment, should consider most for the interest of the estate, and to execute proper deeds therefor, is valid and continues, though the trusts created by the will are declared void.
    Appeal from a judgment in favor of defendant.

      S. Greenbaum, for app’lt; J. H. Bogan, fa^ resp’t.
   "Van Brunt, P. J.

This action was brought to recover the sum of $1,000, the amount paid by them upon the making of a certain contract for the purchase of real estate, and the counsel fee and disbursements incurred in and about the searching of the title involved in said contract; the vendor’s title to the premises having been objected to by the plaintiffs as not marketable. The vendor claimed to have acquired title under a deed executed by the executors of the will of one George Youngs. These executors assumed to execute the deed because of a power of sale contained in the will of said Youngs. Youngs died vested with the title in fee of the premises in question on the 1st of January, 1880, leaving a will, which was duly proved before the surrogate of this county. Shortly after his death an action was commenced in the court of common pleas for a construction of the will. There were minors interested in the estate, the proceedings as to whom seem to have been regular. A judgment was entered in the action in the court of common pleas holding that the trusts attempted to be created by the will were void, arid that the heirs at law were entitled to the real and personal estate subject to the power of sale, and also holding that the power of sale contained in said will was valid. The conveyance by the executors was executed on the 24th of March, 1883, and on the 3d of May, 1883, such executors filed their final accounting of proceedings in the office of the surrogate, by which it appears that there came into the hands of the executors from the personal estate of the deceased over $24,000, and that the sum realized from the sale of his real estate, including the real estate in question, was $45,000; and it also appeared that the total expenditures by the executors, which necessarily included the payment of all the debts, was less than $21,000. In the court below it was held that the court of common pleas had jurisdiction of the subject-matter of the action; that the parties were present before the court, and it determined the question as to the existence of the power of sale; and that this adjudication was binding as a conclusive adjudication upon all parties to that action, whether adults or infants.

In the disposition of the appeal from the judgment we do not think it is at all necessary to determine the question as to whether the courts below placed its decision upon the proper ground or not. It seems to be apparent, upon an examination of the will, that the power of saléis in noway connected with the trusts created which were declared to be void. _ It is an absolute power given to the executors to sell all or any portion of the real estate at such times, and in such manner, and upon such terms as they, in their judgment, should consider most for the interest of the estate; and to execute proper deeds . therefor, and to vest all his title thereto in the purchaser thereof. The case of Kinnier v. Rogers, 42 N. Y. 531, holds such a power of sale to be valid. The authorities cited upon the part of thcplaintiffs hold that where an executor has a mere naked or collateral power, with no beneficial interest whatever in the land or its proceeds, the power can only be exercised in the rriannef for the precise purpose ■ declared and intended by the donor, and that, where that purpose cannot be effectuated, the power fails. But in the case at "bar there is no limitation of purpose whatever. The executors are authorized to sell the real estate at such time, in such manner, and upon such terms as they, in their judgment, shall consider for the interest of the estate, and to execute proper deeds therefor. Even for the purposes 'of distribution the executors would have the right to exercise this power in order to prevent thé expenses of partition. The case of Sweeney v. Warren, 127 N. Y. 426; 40 St. Rep. 304, cited by the appellants, is an example of those cases in which, where an executor was authorized to sell for some specific purpose, which purpose failed or was accomplished, the power of sale cannot be exercised. So here, if the trusts were void, and the power of sale was connected with the execution of the trust, the trust failing, the power of sale would also fail. But we see no connection between the power of sale and trust, although in the execution of the trust it might have been very convenient to have exercised the power of sale. The case is presented of a naked power which the testator has given to his executors to be exercised for the best interests of his estate in the winding up of its affairs. ■ 1

The judgment should be affirmed, with costs.

All concur.


text:
    William F. Cochran, Resp’t. v. Lorenz Reich, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Pleadings—General denial.
    Where nonpayment of rent is alleged in the complaint as a material and necessary j)art of the cause of action, a general denial of the allegations of the complaint puts in issue the fact of nonpayment.
    3. Same—Burden of proof.
    Upon an issue thus raised, the burden is on the plaintiff to prove the facts necessary and material to his cause of action.
    3. Appeal—Judgment.
    • Where, in an action at law to recover money only, the complaint sets up two causes of action, and a judgment for a gross sum is rendered in favor of the defendant, the general term has no authority to affirm the judgment as to one, and reverse it and grant a new trial as to the other cause of action.
    Appeal from a judgment on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.

      Delos McCurdy, for app’lt; Treadwell Cleveland, for resp’t.
   O’Brien, J.

•—■ The questions presented upon this appeal relate to pleadings and proof. The first cause of action is for breach of a covenant to pay rent reserved in a lease. The breach alleged is the refusal to pay. rent after demand madetherefor; that the said several sums (of rent), and each of tliem, now remain wholly due and unpaid, although payment thereof has been duly demanded. The answer contains a general denial No evidence was offered by plaintiff showing or tending to show that the rent alleged to be “wholly due and unpaid” was unpaid in whole or in part. In the absence of such proof, and against the contention of the defendant that the burden of showing nonpayment was upon the plaintiff, the court directed a verdict in plaintiff’s favor.

Upon this cause of action the precise question presented on this, appeal is as to whether, in a case where nonpayment of rent is-alleged in the complaint as a material necessary part of the plaintiff’s cause of action, a general denial of the allegations of the-complaint puts in issue the fact of nonpayment. It'is conceded that it was necessary in the complaint to allege nonpayment, because such constituted a breach of the ■ lease or contract sued upon.

As said in Lent v. N. Y. & Mass. Railroad Co., 130 N. Y. 510 ; 42 St. Rep. 592 :

“It does not admit of controversy that, upon an ordinary contract for the payment of money, nonpayment is a fact which constitutes a breach of the contract, and is the essence of a cause of' "action; and being such, within the rule of the Code, it should be alleged in the complaint. It is said, however, that payment is always an affirmative defense, which must be pleaded to. be available, and hence nonpayment need not be alleged, as, it is not-a fact put in issue by a general denial.”

In that case a demurrer was interposed to the complaint, which omitted to allege nonpayment in an action upon an indebtedness ; and it was therein directly held that such an allegation was essential, and that, for failure to allege it, the complaint was demurrable. In disposing of this question, however, we find some remarks obiter which would seem to support the course pursued by the plaintiff upon the trial, of not offering any proof upon the question of nonpayment. Thus (page 513, 130 N. Y.; and 42 St. Rep. 592), it is stated : ' •

“It cannot be said that where the breach consists in nonpay-' ment of an agreed sum, that it is not an issuable fact, because payment cannot be proven under a general denial. The most, that can be said (s that'that form of denial does not put that fact’ in issue, and to that extent the rule that payment must be pleaded must be deemed to modify the rule of pleading under the Code in reference to a general-denial.”

The second sentence of this quotation is open to construction that, although it is necessary to plead the fact of nonpayment in actions of this character, such fact is not put in issue by a general denial, and, therefore, that it requires no proof, because it is to be taken as admitted. The learned judge writing the opinion in that case quotes with approval from McKyring v. Bull, 16 N. Y. 297. There the complaint alleged that the" plaintiff did labor and service' for and at the request of the defendant, which was worth $650, and concluded with an averment that there was due the plaintiff on account of such service, over and above all payments, and set-offs, $134, and demanded judgment for that sum with interest. The answer consisted only of a general denial of all the allegations of the complaint. Held, that evidence of payment as a defense to the action, or a partial payment in mitigation, was inadmissible on the trial, because neither was pleaded. That is a most instructive case, because we therein find a very learned review of the history of the rule of common law under the old forms of pleading. The precise question, however, there, presented, was as to what could be proven by the defendant under a general denial, and Sellen, J.,in closing the opinion of the court, says:

“Myconclusion, therefore, is that section 149 (old Code) should be so construed as to require the defendants in all cases to plead any new matter constituting an entire or partial defense, and to prohibit them from giving such new matter in evidence upon the assessment of damages when not set up in the answer.”

Although in both of the cases above cited expressions may be found in the opinions favoring the position taken by the plaintiff upon the trial, neither of them was called upon to decide, nor do they decide, the precise question here presented, which is, was the plaintiff, as part of his first cause of action, obliged to prove his necessary allegation of nonpayment? If it was material to allege the breach, such deing denied, it would logically seem necessary to prove it, if we are to be goverened by the fundamental rule that the judgment in every case shall be secumdum allegata etprobata.

It is insisted, however, that whatever the general or logical force of pleadings, and though the result which has been reached in this case may be deemed an anomaly under the Code pleadings, the rule has been settled in the court of appeals by the case of Lent v. Railroad Co., supra. Although this case, as we have seen from the quotation made, does bring some comfort to the respondent, it is not entirely barren of argument to support the appellant’s position. Thus, in the next paragraph of the opinion following the one already quoted, it is said:

“But no reason is apparent how it can justify the omission from the complaint of a fact material to the plaintiff’s cause of action,, and essential to be proved to entitled the plaintiff to a judgment. Sncli facts, under the Code, must be'pleaded. No presumption can be indulged in that a defendant has failed in his duty or omitted to perform his contract obligation.”

As neither of these cases, therefore, is a decisive authority on the question involved, we must look further.

In Quin v. Lloyd, 41 N. Y. 349, the complaint alleged an amount of indebtedness for services performed, without stating the value of such services or their extent, but claimed that the indebtedness was “for the balance remaining due after sundry payments made by the defendant"; and the answer was merely a, denial of the. allegations of the complaint. Held, that, on the trial, the defendant was, under these pleadings, entitled to prove the payment to the plaintiff on account of the services alleged. We therein find that the case of McKyring v. Bull, supra, upon which that of Lent v. Railroad Co. was based, was commented upon and distinguished.

The case of Locklin v. Moore, 57 N. Y. 360, might at first blush be regarded as an authority in respondent’s favor. That was an action brought 'to recover the purchase price of goods sold. The answer, among other things, set up that it was expressly agreed that they should be paid for at defendant’s store; that he had • ,always been ready and willing to pay for them at his store; but that plaintiff had never demanded payment thereof. That such was the agreement the referee found as a fact, but, as a conclusion of law, he found that a demand at defendant’s store by plaintiff before the commencement of the action was unnecessary, and that the commencement' o’f the suit was a sufficient demand. In supporting this ruling of the referee, the court said:

“It is the settled law of this state, announced in many decisions, that when a specific sum of money is made payable'by the agreement of the parties on demand, or at a specified time’ at a particular place, as against the original debtor, no demand at the time or place prior to the commencement of the suit is necessary. Commencement of a suit is itself a sufficient demand. * * The only benefit the defendent could get from the specification of payment at a particular place is that if he was ready there to pay, and kept ready, he could set that fact up in his answer, and then pay the.money into court, and allege such payment in his answer, and thus shield himself from all liability for interest and costs.’’’

Contrasting the case last cited with that of Lent v. Railroad Co., supra, it will be found that the Lent Case is authority for the proposition that in an action upon an alleged indebtedness, an allegation in the complaint-of nonpayment is essential; while the Locklin Case is authority for the proposition that “when a specific sum of money is made payable by the agreement of the parties upon demand, at a specified time, at a particular place, as against the original debtor, no demand at the time or place prior'to the commencement of the suit is necessary; commencement of the suit is itself a sufficient demand." .. This latter case we do not regard as controlling, because we think there is a plain distinction between -an allegation of demand and one of nonpayment. Thus, though it may not be necessary, as held in the Locklin Case, to allege a demand, it has been held in the Lent Case necessary to allege nonpayment. These two—demand and nonpayment—seem to us separable; and, while Locklin v. Moore is controlling in a like case upon the question of demand, it still follows logically that, where nonpayment is an essential allegation of plaintiff’s cause of action, it should be proved.

In Knapp v. Roche, 94 N. Y. 329, it was held that, where a complaint contains an allegation of nonpayment as a necessary and material fact to constitute the' cause of action, proof of payment is admissible under a general denial in the answer; and the rule is thus stated in the opinion:

“While it is generally true that a defense of payment is inadmissible under a general denial, this- is not so when the fact of nonpayment is alleged in the complaint as a necessary and material fact to constitute a • cause of action (citing cases). It is always competent to prove under a general denial any fact tending to controvert the material affirmative allegations of a complaint.” '

These cases do not meet the precise question under discussion, being authorities only upon the point as to what defenses must be pleaded to be available; and the rule deducible from them is correctly stated in Bailies’ Code Pleading and Forms (page 285) as follows:

“A defense which confesses and avoids a cause of action cannot be given in evidence under an answer containing simply a general denial of the allegations of the complaint. Such defenses must be pleaded to authorize evidence thereof to be given on the trial. * ■* * The cases are uniform that, under a general denial, the defendant cannot prove a defense founded upon new matter. A defendant who relies upon payment as a defense must plead it, even though the complaint alleges nonpayment, unless such allegation is necessary and material to the statement of a cause of action.”

And in Bliss on Code Pleading (page 531), referring to the plea of payment, it is said :

“The plea of payment is new matter. The claim is plausible that insomuch as no cause of action can arise upon a contract without its breach, inasmuch as the breach—as nonpayment—must be alleged, it becomes part of the plaintiff’s case, and is involved in a general denial. But whether, in an agreement, as to pay money, it is incumbent upon the defendant to plead the fact of payment as new matter, should, upon principle, depend upon the necessity of showing the fact of nonpayment as a part of the plaintiff’s case. If he is bound to prove, in the first instance, .that the promissory note has not been satisfied, or that the price for or value bf the work and labor or the property sold has not been paid, then the default should be so affirmatively stated that the issué may be taken upon it, and the fact of payment does not become new matter. If, on the other hand, it is sufficient for him, in making his prima fade case, to establish the agreement, or the work or sale, with the price or its value, and if the obligation thereby created has been discharged, —as by payment,—it becomes the duty of the defendant to prove that fact; then such fáct is new matter, to be specially pleaded.”

The general rule of pleading under the Code is that a defendant, by a general denial, puts in issue every fact which it is necessary and material for the plaintiff to allege to constitute his cause of3 action. Here it is conceded that nonpayment of the rent was a necessary and material fact to be alleged in the complaint to constitute plaintiff’s cause of action, and it should logically follow that a general denial of such allegation puts in issue the fact of nonpayment. Upon an issue thus raised, the burden is on the plaintiff to prove the facts necessary and material to his cause of action.

To summarize, then, the logical rule of pleading should require, where a general denial is interposed, proof by the plaintiff of every allegation essential to his cause of action. Therefore, where it is necessary to allege demand and nonpayment, proof must be given of such allegations. In actions, however, where allegations such as demand and nonpayment are not essential to the plaintiff’s cause of action, then payment is an affirmative defense, and, to be 'proved, must be specially pleaded, a general denial not being sufficient to admit of such proof. The distinction between the two lies in the fact that, in the former, plaintiff has to allege and prove monpayment as part of his cause of action, while, in the latter, the defendant confesses the cause of action, but seeks- to-avoid it by pleading and proving payment, which is new matter. In the case at bar the plaintiff concluded that no proof of nonpayment was needed, and none was offered ; and, in this condition of the record, the court directed the verdict against the defendant. As we have endeavored to point out, this seems illogical, and contrary to the rule that the judgment must be secundum allegata et probata; and for this error, as to this cause of action, there must be a new trial.

The second cause of action is for the value of the use and occupation of the premises. It is insisted by the appellant that there is no evidence in the case that the reasonable value of the use and occupation was the amount claimed, or that such amount 11 now remains wholly due and unpaid.” We do not deem it necessary to decide whether this contention is sound, or, in view "of the conclusion which we have reached upon the first point, there must be a new trial as to both causes of action. Goodsell v. W. U. Telegraph Co., 109 N. Y. 147; 15 St. Rep. 73. That case decides that where, in an action at law to recover money only, the complaint sets up two causes of action, and a judgment for a gross sum has been rendered in favor of the plaintiff, the general term has no authority to affirm the judgment as one cause of action, and reverse it and grant a new trial as to the other. See," also. Pollett v. Long, 56 N. Y. 201; Story v. Railroad Co., 6 N. Y. 85.

The judgment is therefore reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: Parker, J.

text:
    Conrad Geibel, App’lt, v. James W. Elwell, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Limitation—Infancy.
    Commencement of an action by the guardian of an infant does not set the statutes of limitations running against the infant.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    This action was brought to recover for personal injury sustained by the plaintiff and resulting from, the negligence of the defendant. The injury complained of occurred on the 11th day of April, 1884, at which time the plaintiff was between eleven and twelve year of age. It appears from the record that in March, 1886, his grandfather, Philip Bender, was appointed guardian for him, for the purpose of bringing an action against the defendant to recover damages for the injury in question, and on the 6th of May, 1886, the plaintiff commenced that action by his grandfather as guardian. The defendant answered in the cause, and on March 5,1888, the case came oh for trial, and at the close of the evidence a juror was withdrawn, to admit of a motion for an amendment, of the complaint. In August, 1890, a motion for leave to amend was made, and on September 3, 1890, was denied. In January, 1891, the guardian ad litem died. No other guardian was appointed in that action. On January 27, 1892, an order was entered by consent discontinuing the action. On October 3, 1892, plaintiff’s uncle, Philip Bender, Jr., was appointed guardian ad litem for the purpose of bringing this present suit, and this suit was commenced by the plaintiff on the 3d of December, 1892.

      Christopher Fine, for pl’ff; R. D. Benedict, for def’t.
   Parker, J.

— The dismissal of the complaint at. circuit went upon the ground that the commencement of the first action in May, 1886, operated to remove the disability of the infant provided for by section 396 of the Code, the effect being that the three-years statute of limitations began to run. If such was its effect, it necessarily follows that the plaintiff’s cause of action was barred before this action was brought in December, 1892. The statute which controls this question is as follows (Code):

Section 380: “ The following actions must be commenced within the following periods after the cause of action has accrued.”

Section 383: “Within three years ; * * * (5) An action to recover damages for a personal injury resulting from negligence.”

Section 396: “If the person entitled to maintain an action specified in this title * * * is, at the time when the cause of action accrued either (1) within the age of twenty-one years, or (2) insane, or (3) imprisoned on a criminal charge, or upon imprisonment for the conviction of a criminal offense for a term less than life, the time of such disability is not a part of the time limited in this title for commencing an action, except that the time so limited cannot be extended more than five years by any such disability, except infancy, or in any case, more than one year after the disability ceases.”

The defendant urges, in support of the dismissal, that, within the meaning of the statute, the plaintiff’s disability to sue ceased when his guardian commenced an action to recover the damages sustained by the jmfant in May, 1886; that it is not conceivable that a suit properly brought by plaintiff should coexist with a disability of the plaintiff to bring such suit; and that, under the statute, it is not the time of the infancy that is not to be counted, but the time of disability, which ceases when suit is brought. rThe statute is not well expressed, and because that is so, there has been afforded an opportunity for debate, of which counsel have fully availed themselves. The use of the word -“disability" furnishes the basis for the defendant’s contention. It is said that the connection in which i't is employed indicates that it was the legislative intent to save the bar of the statute, as against a minor, until he should reach his majority, and such a reasonable time thereafter as should afford him opportunity to take action looking to indemnity for his injuries, unless, befqre coming of age, he should prosecute by guardian. But it does not seem to us that the statute can be so read. It undertakes to provide that, as against persons while in certain situations, the statute of limitatians shall not run. It describes the situations in which persons must be to stop the running of the statute as (1) within the age of twenty-one years, or (2) insane, or (3) imprisoned on a criminal charge, or upon imprisonment for the conviction of a criminal offense for a term less than life. It then continues:

“The time of such disability is not a part of the time limited in this title for commencing an action. * * *”

What “ time ” is" it which is thus referred to as one of “ disability" ? It is the time which must elapse before a person affected by the statute reaches his majority, or while he is insane, or imprisoned, as.the case may be. There is no other time or period to. which it can refer, and, awkwardly as it is expressed, it nevertheless seems to be clear that the words, “time of such disability,"' were used to characterize generally, and without repetition, the three conditions in which a person having a cause of action might be so placed as to need protection from the preceeding sections. And in order to give to the statute a construction which starts the running of the three-years statute of limitations before the minor reaches his majority, it is necessary to import into it something which we cannot say was intended by" its framers. There is certainly no occasion to strain after such a construction, for if a minor should be protected from the running of the statute until his majority, if he cannot secure a person to act as guardian and prosecute his action, why should he not be protected if the person consenting'to be his guardian, after commencing the action, changes his-mind, and discontinues it, as in this case?

As our conclusion is that the action was not barred, the exceptions must be sustained, and a new trial ordered, with costs to the plaintiff to abide the event. ‘

All concur.


author: Follett, J.

text:
    M. Jacoby and Company, Resp’t, v. George E. Payson et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 18, 1895.)

    POWER OF ATTORNEY—AUTHORITY.
    Where a power of attorney authorizes the attorney to demand, receive, and recover all moneys owing to the principal; to investigate, settle and compromise, all claims, disputes and matters which are, shall or may subsist or arise ; to conduct litigation touching the premises ; to give effectual receipts in full discharge of all claims ; “and generally to do, perform and. execute all and every such act and acts, duty and duties in and about the premises as he shall think proper, as fully and effectually, to all intents, and purposes whatsoever;” as the principal might or could do if personally present, the attorney has no authority to endorse and negotiate a check received by him in compromising a claim in favor of the principal.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    This actioiTwas begun April 12, 1892, against Elisha J. Dennison, to recover damages for the alleged conversion of" the following check:

      “No. 230. New York, Nov. 20th, 1890.
    “Bank of America: Pay to the ordfer of- M. Jacoby & Co.,
    forty-siá hundred and thirty-nine 27-100 dollars.
    $4,639.27. The H. B. Claflin Company.
    By D. N. Force.”
    Indorsed: “M. Jacoby & Co., E. J. Dennison.”
    Stamped on face: “8. 21 Nov., 1890.”
    Stamped on left-hand margin : “C. The Bank of America.
    Certified. Payable only through N. Y. Clearing House.”
    Afterwards Dennison died, and this action was revived and continued against his representatives.
    The plaintiff is a foreign corporation, existing under the laws of the United Kingdom of Great Britain and Irelaud, having its chief place of business at Nottingham, England, and is engaged in the manufacture and sale of lace curtains. August 1, 1883, the plaintiff and H. L. Fesler & Co., of New York, entered into a contract of which the following is a copy:
    “New York, August 1, 1888.
    “Articles of agreement, made and entered into this duy, by and between Messrs. M. Jacoby & Co., Nottingham, England, parties of the first part, and Messrs. H. L. Fesler & Co., of New York, parties of the second part, wherein Messrs. M. Jacoby & Co. appoint Messrs. H. L. Fesler & Go. their sole agents for the United States and Canada (in letter 25 June, ’89, H. L. F. & Co. give up all their claim for Canada, authorizing us to appoint another agent for Canada), for the term of three years, on the following conditions :
    “Messrs. H. L. Fesler & Co. to pay all the expenses on this side for postage, and such travéling expenses on journeys as are undertaken by Mr. W. Behrend, who is under contract with Messrs. Fesler & Co. to manage this department. Cable expenses to the account of M. Jacoby & Co., who are to furnish all samples free of charge to Messrs. Fesler & Co., and the same to be sold by Messrs. Fesler & Co., for account of Messrs. M. Jacoby & Co., at the end of each season, or be returned. All orders taken at the risk of M. Jacoby & Co. for the present Messrs. Me Jacoby & Co., will not pay any commission for goods sold by them to the following houses:
    Lawson Bros.; Messrs. Fletcher & Co.........„. .New York.
    S. E. Block & Bros.,
    L. V. Asiel & Co.; Mills & Gibbs..............New York.
    Meiser Bros.: Einstein, Hirsch & Co..New York. E. Erdman & Co.; Welker k Bless.............New York.
    Lahey k Dubord,
    Boyd, Stretton k Co.; Jaffray k Co.............New York.
    Aron stein & Wolfers ; Modry k Co...... .E. Mormner k Co.
    Cohen Bros, k Co.; Manloir k Co... Arnold, Constable k Co. Harriman & Co.

      Messrs. (H) Bauer Bros. & Co. (H) Mr. Y. J. Rounds (H) Tefft; Weíler.&Oo. '
    (H) Thos. May & Co.
    (H) J. Patterson & Co. H. L. F. & Co.
    (H) W. G-. Caldwell & Co.
    “Excepting the above-named firms a commission of five per -cent, on the net amount of -all sales made in sterling on our goods to be- paid by Messrs. M. Jacoby & Co. to Messrs. H. L. Fesler & Co.; a commission of one and one-half per cent, on the net amount of all sales made in sterling on town goods.
    “A monthly statement to be rendered by Messrs. M. Jacoby & Co. of all sales, and a fly-sheet copy of each invoice to be sent to Messrs. H. L. Fesler & Co.; commission to be paid to Messrs. H. L. Fesler & Co. when bills are due, as per terms given when orders are taken from the customers.
    “Signature for M. Jacoby & Co., W. J. Massey. Witness: A. Auerbach.
    “Signature: H. L.-Fesler & Co. Witness: W. Behrend.”
    Afterwards the plaintiff and H. L. Fesler & Co. extendéd the foregoing-contract by the following agreement:
    “This agreement is hereby extended, authorizing Messrs. H. L. Fesler & Co. to take order in currency, selling same in their name and account; it being understood that Messrs. Fesler & Co. guaranty all goods so sold by them.-- On all such orders taken by them, Messrs: Fesler & Co. will name the houses to whom goods are sold; also, time of delivery, terms of payment, prices and so forth; furnishing a report of the financial standing of the said firm. Messrs. Fesler & Co. to advance the freight, duty, and other incidental expenses, adding same-to the sterling price, which they will so calculate to return Messrs. M. Jacoby & Co., Limited, the" net amount in sterling, sending account sales showing the transations in detail. Remittances to bey made by Messrs. Fesler & Co. in accordance with the terms stated by them in the original orders.
    “Consular invoices: Messrs. Fesler & Co. will give in sterling the prices to be invoiced.
    “For M. Jacoby & Co., Limited,
    “Arthur J. Butler, Director.
    “H. L. Fesler & Co.”
    In November, 1890, Wight & Co., of the hity of New York, were indebted to the plaintiff in a considerable sum for goods sold. These goods were not sold through Henry L. Fesler or H. L. Fesler & Co., Novomber 8, 1890, H. L. Fesler & Co. learned that-Wight & Oo. were "embarrassed, and on that daycabled the plaintiff as follows:”
    “ Have private information Wight & Co. failing very soon. Shall I act? “ Fesler.”
    On the 11th of November, 1890, the plaintiff, executed and delivered the following power of attorney to Fritz Reinhold, of Nottingham, England:

      “To All To Whom These Presents Shall Come: We, John Henry Jacoby and Arthur Joynes Butler, Directors of M. Jacoby •& Co., Limited, Nottingham, England, Lace Manufacturers and Merchants, Greeting: Whereas, we the aforesaid John Henry Jacoby and Arthur Joynes Butler, having reason to believe that several firms in New York, in the United States of America, are not in a position to meet their indebtedness to the firm of M. Jacoby & Co., Limited, desire to give a general power of attorney, to Fritz Reinhold to act for them in such manner as he, in his discretion, may think the circumstance of each case may require, and to adjust any claims or differences in account that may„arise with these New York firms. Now these presents witness that the .said John Henry Jacoby and Arthur Joynes Butler do hereby make, ordain, constitute, and appoint Fritz Reinhold, of Nottingham, in the United Kingdom of Great Britain and Ireland, their true and lawful attorney and agent for them and in their name or otherwise, and on their behalf to ask, demand, receive, and recover, all and every sum or sums of money whatsoever that are or is now due and owing to the said company ; of and on our behalf to investigate, adjust, settle, and to compromise all accounts, debts claims, disputes, and matters which are, shall or may subsist or arise; and also, if necessary, to commence and prosecute and defend all actions, suits, claims, demands, and proceedings touching the premises, and in any way connected therewith, and also to receive and give effectual receipts and discharges for all sums of money, claims, or demands by the said company, and to prove and receive dividends, and to give receipts for the proceeds arising from all; also to give effectual receipts in full discharge of all claims; and generally to do, perform, and execute all and every such act and acts, duty and duties, in and about the premises as he, the said Fritz Reinhold, shall think proper, as fully and as effectually, to all intents and purposes whatsoever, as the said John Henry Jacoby and Arthur Joynes Butler might or could do if personally present ; and also to substitute and appoint any person or persons to act under or in. the place of the said Fritz Reinhold in all or any of the matters aforesaid, and every such substitution at pleasure to revoke, the said John Henry Jacoby and Arthur Joynes Butler hereby agreeing to ratify, confirm whatsoever the said Fritz Reinhold or his substitute or substitutes shall lawfully do or cause to be done in or about the premises by virtue of these presents. In witness whereof, the said John Henry Jacob and Arthur Joynes Butler have hereunto set their hands and seals, and also affixed the common seal of the said company, the eleventh day of November, in the year of our Lord one thous- and eight hundred and ninety. ,
    For M. Jacoby & Go., Limited,
    “J Henry Jacoby, [Seal] Director.
    “Signed, sealed, and delivered
    in the presence of Geo. Richards. °
    “J. H. Warner. “ For M. Jacoby & Co., Limited,
    “Arthur J. Butler, [Seal.] Director.”'

      On the 19th of November, 1890. Fritz Reinhold arrived in New York, bring with him his power of attorney. On the 21st of November, 1890, he wrote the plaintiff as . follows:

      “Nov. 21st, 1890.
    “Messrs. M. Jacoby & Co., Limited, Nottingham, Eng.—
    Dear Sir:
    I arrived on the 19th, late at night. Called yesterday on Mess. Welclcer & Reis. * * * With reference to Wight & Co., Reis asked me to avail myself of Mr. Fesler s assistance, whom lie believes had already done something in the matter. When call¡hg on Fesler & Co., I did not find-Fesler at home; had just gone to Wight & Co.; and after one-half hour’s waiting he came back, and having everything settled; but, having no further power, he could not give receipt, and agree to abandonment of all further claims. The last two invoices are given back to Feslor; the remainder, about £1,000, they pay 90 per cent. Fesler assures me that the of 90 per cent. is overdue to him, being first to look after our interests. * * * I have given my full power to Fesler to arrange everything finally to-day. He shall very likely give you exact particulars later on by same mail. Without more for the moment, I remain, dear sirs,
    “ Yours faithfully, Fritz Reinhold.
    (“Wright & Co.)
    “Fesler will write you to-day. On Monday I shall see the color of their money. * * * ”
    On the power of attorney, produced by the defendants, the execution of which was proved by one of the plaintiff’s directors, was indorsed the following:
    “I herewith transfer this power of attorney to Mr. H. L. Fesler,, of 464 Broome St., New York. "Fritz Reinhold.
    “Nov. 20, 1890.
    [Seal of M. Jacoby & Go., Limited.]”
    The execution of this transfer by Reinhold was not proved, except as established by his letter to the plaintiff, which was produced by the plaintiff, and formed in part an answer to one of the interrogatories propounded to plaintiff’s managing director by the commission issued to take evidence in England. On November 20, 1890, Henry L. Fesler, and before he had seen Fritz Reinliold, effected a settlement with Wight & Co., and received the check in question. On that day or on the next, Fesler indorsed upon the check the signature, “ M. Jacoby & Go.; ” and, on the 20th or 21st of November, the defendant’s testator indorsed the check, “ E. J. Dennison,” and on the same day deposited it to his credit in the National Oity Bank of New York, which presented it to the Bank of America on the same day, by which bank it was paid. Neither the check nor any part of the avails thereof was received by the plaintiff, and, before this action was begun, the check and its avails were demanded of the defendant’s testator, who refused to deliver the check or pay over the money he had received thereon.

      Lawrence Godkin, for app’lts; John J. Adams, for resp’t.
   Follett, J.

— It is agreed that the check which is the subject of this action was the property of the plaintiff, and that its title thereto could not be divested without its act or the act of an agent having power to transfer it. It is conceded that the check was not received by the plaintiff. The defendants insist that their testator acquired title to the check through the indorsement thereon of the plaintiff’s name by Henry L. Fesler. On the former trial it appeared that defendant’s testator received the check from Fesler in part payment of a debt owing by the latter to the former; but that fact was not proved on this trial, nor was it shown from whom- Dennison received the check, nor was the consideration or the circumstances of its transfer to him shown or in any wise explained.

The learned counsel for the defendants asserts that Henry L. Fesler was authorized to indorse the plaintiff’s name and negotiate the check (1) by the contract of August 8,1888, and the con tin utian thereof; (2) by the power of attorney of November 11,1890, and the transfer thereof of November 20, 1890. It is plain that neither Henry L. Fesler nor H. L. Fesler & Co. had power under the contract of August 8, 1883, to compromise the claim against Wight & Co., or to indorse the check received upon the compromise. The goods out of which the compromised indebtedness arose‘were not sold through H. L. Fesler & Co., but directly by the plaintiff to Wight & Co. The only authority of Henry L. Fesler to compromise the debt is derived from the power of attorney, which, for the purpose- of this decision, we shall assume was transferred to him by Fritz Eeinhold. By the substitution of November 20, 1890, Henry L. Fesler stood in the place of Eeinhold, and was vested with his powers, which were not derived from him, but through him, from the plaintiff.

The case at bar cannot, we think, be distinguished in principle from Holtsinger v. Bank, 1 Sweeny, 64; 6 Abb. Prac. (N. S.) 292; 37 How. Prac. 203, and affirmed by the court of appeals in 3 Alb. Law J. 305, and 40 How. Prac. 720. In the case cited, the original power was broad and general as the one in the case at bar.- It contains this provision:

“ I do hereby grant unto my said attorneys full power to execute and deliver all needful instruments and papers,, and to perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully and completely, to all intents and' purposes, as I might and could do if personally present, hereby ratifying and confirming all the acts of my said attorneys, or either of them, done by virtue and in pursuance of these presents.”

The power was given to enable the attorneys to collect arrears of pay due the principal from the United States. The attorneys received two checks drawn by a paymaster on the assistant treasurer of the United States at New York, payable to the order of the principal. Under the power, the agents indorsed and collected the checks; and it was held that the indorsements were not authorized by the power, and that the defendant (a bank), which had received the money from the assistant treasurer, was liable to the principal. The only distinction between the cases is that the plaintiff is a foreign corporation; and it is the custom to pay commercial debts by checks; and it is urged that the power to collect embraces the power to do it in the usual way, and to perform every act necessary to make the check available, or in other words, to convert it into money. Had Fesler indorsed the. name of his principal on the check, and received payment thereof directly from the drawee, a somewhat different question would have been presented for in that case no-liability would have been created against the principal by the indorsement; but Fesler, after indorsing the name of his principal, negotiated the check, thus assuming to impose a liability on his principal. There is no evidence that Fesler indorsed the check for collection, or that he ever received the avails of the check. We find no authority broad enough to justify this court in holding that:the case at bar is not within the rule declared in the 'case before cited.

See, also, Filley v. Gilman, 34 N. Y. Supr. Ct. 339; Bank v. Hochstadter, 11 Daly, 343; Hogg v. Snaith, 1 Taunt. 347.

The learned counsel for the respondent seeks to uphold this judgment on the ground that the plaintiff had clothed H. L. .Fesler with apparent authority to indorse the check. There is no question of apparent authority in this case. Ho fact was proved which enlarged the authority conferred by the power of attorney, and there is no evidence that Dennison relied on the apparent authority of Fesler, or had knowledge of any fact tending to show that he had apparent authority. It does not appear that Dennison had ever heard of the plaintiff, or of the relations. existing between it and Fesler, when he received the check; nor is there any evidence that Dennison received the check from Fesler. From whom he received it does not appear.

The judgment and order should be affirmed, with costs.

All concur.


text:
    Richard V. Boyd, Resp’t, v. Edward F. De Lancey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December, 18, 1895.)

    YSNDOB Aim PUECHASEB—DAMAGES.
    The measure of damages for the breach of a contract by the vendor is the difference between the contract price and the value of the property at the time of the breach.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.

      William M. Snyder, for app’lt; A. Britton Havens, for resp’t.
   Parker, J.

The complaint alleged the making of an agreement on the 20th day ,of October, 1892, by which'the defendant, in consideration of the sum of §1,500 then paid, gave to the plaintiff the option at any time between its ' date and the 31st day of December, 18-92, of purchasing for the sum of $85,000 a certain tract of land, situated in the town of .Mamaboueck, county of Westchester; a, breach of the agreement by the defendant; and demanded damages in the sum of $11,500. The answer, among other things, denied the breach of the agreement by the defendant; and upon the trial the court submitted such question to the jury, who rendered a verdict in favor of the plaintiff in the sum of $2,998. Against the objection of the defendant that “the evidence is immaterial, irrelevant, and incompetent, also as too remote on the question of damages, and as speculative, and as not competent to prove of the measure of damages,” the plaintiff was allowed to testify that his intent in purchasing the land was to lay it out in lots and retail the lots; that he told the defendant, before procuring the option, that it was his interftion to spend about $50,000 in developing the property; how, since the breach of the agreement, he had figured out how many building sites were ■ contained in the plot, and found it would ciit up into 255 lots, of about fifty feet front, and from 100 to 150 feet in depth. The lots," he testified, would not all sell at the same price, but one-half would be worth about $1,000 apiece, and others $800 apiece, and lots next to the railroad about $300 apiece. And upon this basis he stated the valuation of the entire property to be $204,000, exclusive of the house upon it, which he estimated at $2,000. Other evidence bearing upon the prospective value of the property, to be caused in part by the improvements which the plaintiff contemplated making, was admitted against defendant’s objection; but sufficient reference has been made to it to present the ground on which the appellant urges, and we think rightly, that he is entitled to a reversal. The rule of damages applicable to this case is stated in Pumpelly v. Phelps, 40 N. Y. 59, at page 66, as" follows:

“The general rule certainly is that where the vendor has the title, and for any reason refuses to convey it as required by his contract, he shall respond in law for the damages, in which he shall make good to the plaintiff what he has lost by his bargain not being lived up to. This gives the vendee the difference between the contract price and the value at the time of the breach, as profits or advantages which are the direct and immediate fruits of the contract.”

That the evidence was offered for the purpose of obtaining a greater amount of damages than the rule thus referred to would afford is apparent from the character of the testimony of the plaintiff, received under objection. That the court so understood it, and so advised the jury, appears from the charge, in which the court, after referring briefly to the plan of the plaintiff in making .the purchase for the purpose of laying it out into residential lots, to accomplish which he had a syndicate behind him, said:

“Ordinarily, on the breach of such an agreement, the amount which a party would be entitled to recover would be the difference between the contract price and that which was the marketable value of the property. But there are cases in which, where it can seen from the evidence damages were certain to follow from the breach of the agreement, other than the mere difference between the contract price and the market price, those .may be taken into consideration by the jury, bat those cases are rare."

It cannot be said that the evidence basing value upon contemplated sales after the property should have been laid out in lots did not affect the verdict of the jury, for other witnesses acquainted with the value of real estate in that vicinity testified that the fair market value of the property at the time of the breach of the contract did not exceed the contract price of $85,000.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., concurs; Follett, J., concurs in result.


author: Van Brunt, P. J.

text:
    William Brooks, Resp’t, v. Charles E. Tayntor et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Cemetebies—Removal of monument.
    Under chapter 543 of 1888, the claimant by a lien has no right to remove the monument in the absence of service of notice on the purchaser or owner of the lot by the superintendent or other person in. charge of the cemetery. '
    Appeal from an order denying an injunction pendente lite.

      Hugo Hirsh, for app’lts; A. Thains for resp’t.
   Van Brunt, P. J.

The defendants are dealers in monuments, grave stones, etc. In the year 1893 they furnished a monument to the plaintiff, and erected the same on the plaintiff’s burial plot in Greenwood Cemetery. The-plaintiff paid the contract price of this monument partly in cash, and partly in notes, as required by the contract; and, because of the nonpayment of these notes, the defendants threatened to enforce the payment of thjit indebtedness, under chapter 543 of the Laws of 1888, and, to that end, to take possession of the monument, detach it from the soil, and sell it at auction. This action was brought to restrain the defendants from removing the monument, and from in any manner interfering therewith.

It is claimed upon the part of the respondent that the statute in question is unconstitutional, and that the method of procedure provided by the statute has not been complied with,. In the disposition of this appeal it does not seem to be necessary to consider the question of the constitutionality of this extraordinary legislative production, called chapter 543 of the Laws of 1888. The act provides that every person, etc., that shall furnish or place in any cemetery or burial ground within the state any monument, etc., shall have a lien upon such monument for the principal and interest of the agreed price thereof, or such portion of said price-as shall remain unpaid, until the same be paid in full; porvided such' person shall, at any time or within one year after the bill for the same becomes due, file with the superintendent or person in charge of such cemetery or burial ground a notice in writing to the effect that the person, etc., claims a lien on the same for the purchase price thereof, or such portion of the purchase price thereof as remains unpaid, with interest. After certain other provisions in regard to the form of the lien, the statute provides that it shall be the duty of the superintendent or person in charge of the cemetery with whom any such notice shall be hied to forthwith notify the owner or owners of the plot so described in said notice of the filing of said notice of lien. This is the only provision contained in' the act in regard to the service of this notice upon the owner of the monument. It seems to be somewhat difficult to understand exactly how such a requirement upon the part of a superintendent of a burial ground can be enforced. In the case at bar the superintendent did not give any notice. The next section provides that, in case the amount due be not paid within six months after the service of said notice on the plot owner as hereinbefore provided, the said person, etc., so claiming ■such liens, shall thereafter, and within sixty days, have the right, •on ten days’ notice to the superintendent or person in charge of the cemetery of his election so to'do, to remove from said burial ground the monument to the outside of the grounds of the cemetery, and, upon publishing a notice in two newspapers, may sell it.

In the case at bar, as above stated, no notice whatever was served by the superintendent. It is claimed upon the part of the' defendants that their agent served a copy of the notice of lien upon the plaintiff. The plaintiff, however, asserts that no such •service of notice of the filing of the lien was ever made upon him; that the notice served upon him was prior to the filing of the lien. It seems to be clear that the statute has not been complied with. The right to foreclose the lien under the statute depended upon the ■expiration of a certain time after the service of notice of the filing of the notice of lien by the superintendent of the cemetery, and no authority is given to anybody else to usurp this duty.. It is clear, therefore, that the defendants did not comply with the statute, and they had no right to commit this threatened trespass upon the plaintiff’s burial plot, even if this remarkable statue can be held to be constitutional, in respect to which we express no opinion.

The order appealed from should be affirmed, with $10 costs and disbursements.


author: Van Brunt, P. J. Follett, J.

text:
    The People, Pl’ff, v. Commercial Alliance Life Insurance Company, Def’t. Buel, Toucey & Whiting, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Corporations—Allowance for attorney’s fees.
    Where, upon an application made for the appointment of a receiver of a corporation upon the ground of its insolvency, the officers of the company know that the company is insolvent and act in bad faith, no allowance can be made to the attorneys who opposed the application for the appointment of such receiver, though they acted in good faith.
    Appeal from an order directing the receiver to pay petitioners a certain sum for their services.
    IF. 8. Maddox, for app’It; O. P. Buel, for resp’ts.
   Van Brunt, P. J.

The case of Barnes v. Newcomb, 89 N. Y. 108, may possibly be <in authority for the proposition that where an application is made for the appointment of a receiver of a corporation upon the ground of its insolvency, and the company employs counsel, and opposes such application in good faith, and with a conviction of the solvency of the company audits right to-conduct its own business, and it has probable cause and reasonable ground for such opposition, the court may, in administering tbé fund, allow the reasonable expenses incurred tn repelling the-attack upon the corporation, which its officers regarded as unfounded. But where, -as in the case at bar, the officers of the company undoubtedly knew that the company was -insolvent, and acted in bad faith, there seems to be no possible ground upon which indemnity for expenses incurred can be allowed. It has been suggested that, as the attorneys in the case at bar acted in good faith, the b'ad faith of their credit cannot be imputed to them. But the authority quoted clearly only allows indemnity for reasonable expenses which the corporation has incurred in the conduct of an opposition in good faith. It certainly would be a strange proposition to hold that, although therofficers had acted in-bad faith, yet the agents whom they employed should be able to procure such an allowance in their behalf, and a preference over the other creditors of the corporation. We think, under the circumstances of the case at bar, that ho allowance can be made to the attorneys, notwithstanding that they acted in good faith, because of the want of good faith upon the part of the officers of the corporation who employed them. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

Parker, J., concurs.

Follett, J.

(dissenting).—The bad faith of the officers cannot be imputed to the corporation, its shareholders, its policy holders, and creditors, whom the attorneys represented, and whose right it was material to inquire into and to protect. The attorneys had no knowledge that the corporation was insolvent, and we re ignorant of the facts known to its officers, and their bad faith cannot be imputed to counsel. The officers did not employ the attorneys to defend their own interests alone, but to defend the interests of the-corporation and all persons represented by it. The order should be affirmed, with costs.


author: Patterson, J.

text:
    Emil Slayton, App’lt, v. Hans Hemken, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Release—Constbüction.
    A general release is not limited by the concluding words, “ And particularly from all the claims and demands whatsoever arising out of the partnership relation between the parties,” where they have not only partnership relations, but also causes of action against each other for tort.

      2. Same—Ignorance.
    If the instrument is in a form to operate as a general release, ignorance of a claim or cause of action does not impair its effect at law as a bar to that claim or as a cause of action.
    3. Same.
    In construing a general release, the words of limitation should précede, and not follow, the general words.
    4. Liable—Actionable per se.
    Inhere, in a complaint for a libel, matter of inducement, clear and direct, showing the existence of circumstances extrinsic to the words, but which, when considered in connection with them, made such words defamatory, is plainly set forth in the statement of that particular cause of action, and innuendoes appropriately making the application to the defamatory words to the plaintiff are also alleged, it is not necessary to show-special damage.
    5. Slander—Actionable words.
    To say to another, “ He swindled and robbed me,” is actioanble. per se. It must be shown, in order to relieve them of this quality, that they were intended to be understood in a limited sense, and that the person to whom they were spoken knew this.
    Appeal from a judgment entered on a verdict in favor of defendant.

      E. Ellery Anderson, for app’lt; B. F. Einstein, for resp’t.
   Patterson, J.

The complaint herein was upon three causes of action in libel and a fourth in slander. The first and third were dismissed by the court, and a verdict, was rendered for the defendant on the second and fourth. We do not agree with the views of the trial justice as to the effect of the evidence of the plaintiff’s witness relating to the subject of the specific ruling by which this first cause of action was disposed of. The identification of the defendant as the person who on the evening of the 27th of October, 1890, gave the reporter of the newspaper the defamatory statements that appeared in the article next day was sufficient prima facie ; but we are of opinion that the course taken at the -trial with respect to 'this cause of action was right for another and different reason ; one which not only applies directly to it, but brings up the question of the correctness of the charge to the jury in submitting the matters arjsing in the second cause of action. The wrong there complained of is alleged to have been committed on or about the 10th of November, 1890. There was a question of fact properly left to the jury, 8whether copies of the newspaper containing the libelous matter were mailed by the procurement of the defendant to divers persons before or after November 5, 1890. For some months before that date the plaintiff and defendant had been copartners in business. Exceedingly hostile relations had sprung up between them. On the day last named= releases under seal were exchanged. The court charged that the release was a bar to all right of action for anything involved in this action that occurred prior to November 5th. It was shown that on that day the parties came to an accord and settlement of all the matters in controversy between them,—an adjustment of matters not only growing out of strictly business differences, but, as She record discloses, involving serious torts. The instrument was in form a general release, with its customary sweeping technical verbiage, followed by the words : “ And particularly from all claims and demands whatsoever arising out of the partnership relations between said parties as members of the firm of Hemken & Slayton.” Regard being had to all the relations existing between these parties, we cannot say the instiuction given to the jury was error. Something more than mere “ partnership relations" or business demands and causes of action were in dispute. Bitter wrongs were alleged on both sides. Fraud and crime had been imputed to the plaintiff, who in turn accused the defendant of having caused his arrest, and maligned him. Personal torts were, therefore, under consideration, and what was in negotiation before the release, and became affected by it, was a general settlement of all the outstanding differences, and an abandonment of the respective grievances, whatever they might be, of the parties. Had the release been so drawn as to indicate-a purpose to reserve anything from its operation, it would certainly be strictly limited in interpreting it.' The only ground upon which such a limitation is sought to be impressed upon it by the appellant is by force of the words above quoted. The rule respecting the construction of releases is that, although taken most strongly against the releasor, yet general words are to be construed by their context, and, if there appear a clear intent to make a limitation or exception, it shall be allowed. Therefore recitals are said to control the general clause, and make it special, and so the particular subject of the dealing out of which the release arises may, if distinctly stated in the, instrument before the general ■clause, confine the effect of that general clause to matters directly connected with that particular subject. But it is all a matter of intention. If the instrument is in a form to'operate as a general release, ignorance of a claim or cause of action does not impair its effect at law as a bar to that claim of cause of action. Kirchner v. New Home S. Machine Co., 135 N. Y. 182; 48. St. Rep. 242. But, while all parts of the instrument are to be considered in determining its intent, the general principle of construction has been that the words of limitation should precede, and not follow, the-general words. Thus in Jackson v. Stackhouse, 1 Cow. 125, the court says: “Where there is a particular recital, and general words follow, the general, words shall be qualified by the particular recital.” It is not to be inferred from this that it is an inflexible requirement that the mere order of arrangement of the component parts of the release must necessarily control, but that order is of great significance, as is illustrated by Dunbar v. Dunbar, 5 Gray, 104.x There words of general release were followed by the words, “and particularly from the debt and costs in two actions,” etc. Shaw, O. J., rfor the court, says: “ Certainly great-liberality is-allowed in construing releases. The intent is to be sought from the whole and every part of the instrument.” So “where certain debts, claims, and subjects of controvérsy are released, followed by general words, they shall be construed to be limited to the ■subjects enumerated, or those of a like kind and character, if such be the fair intent. Simons v. Johnson, 8 Barb. & Adol. 175.” The Dunbar Gase, seemed to turn largely upon the fact that the releasor did not first specify the particular things, and then add the general clause, but vice versa. Here is the same description of release, using the same words, “ particularly from.” Obviously it comprehended something more than mere business or commercial ■controversies. Actionable personal wrongs were, and were intended to' be, included; and, under the Kirchner Case, ignorance of the existence of any particular wrong< does not destroy the legal effect of the release, although it might have been attacked for mutual mistake, or mistake of one party and fraud of the other; an opportunity to do which was given by the justice at the trial, but was not- availed of. Under this construction the charge was not erroneous, and the dismissal of the first cause of action was proper, for the alleged wrong therein set forth was perpetrated on the 27th of October, and was, therefore, fully released.

The third cause of action was taken from the jury on the ground that the words complained of were not in themselves libelous, and special damage was neither alleged nor proven. But matter of inducement, clear and direct, showing the existence of circumstances extrinsic of the words, but which, when considered in -connection with them, made such words defamatory, was plainly .set forth in the statement of that particular cause of action ; and innuendoes appropriately making the application of the defamatory words to the plaintiff were also set forth. With such allegations it was not necessary to show special damage, for an action may-be maintained without it, as was held in the recent case in this court of Gideon v. Dwyer, 87 Hun, 250; 67 St. Rep. 427. The disposition made of this cause of action at the circuit was, therefore, erroneous. The words complained of in the fourth cause of action are, lie (meaning the plaintiff) swindled and robbed me (meaning the defendant).” The court left the jury to determine the actionable character of these words, and whether it was the intention to use them as imputing crime, or in a sense that would injure the plaintiff in his business; and, giving the words their ordinary significance, whether, a person cognizant of the relations existing between the parties and hearing the words would understand that a charge was made that the plaintiff had committed a crime. As this instruction was given, it was error. The words were spoken to one Donnenberg, in the hearing of the witness Ahlborn. They are plainly slanderous per se. To relieve them of that.quality, they must have been explained, or in some way limited to particular facts, or .shown to have been spoken to some one having knowledge or information of such facts. Hayes v. Ball, 72 N. Y. 418; Phillips v. Barber, 7 Wend. 439. Ahlborn says the defendant -explained to Donnenberg “ what the trouble was between him and Mr. Slayton,” but does not recollect the explanation. Hot one and other than those complained of can the witness recall. The case is therefore lacking in any kind of proof of explanatory matter, and the naked defamatory words spoken to Donnenberg were alone before the court. The words “swindled ”‘ and “ robber each have a well-known, and but one, signification. A robber is a thief, and to say of a man, “ You are a. thief,” imputes larceny, Slowman v. Dutton, 10 Bing. 402: and to’ say, “ He robbed J. W.,” imputes crime also, Tomlinson v. Brittlebank, 4 Barn & Adol. 630. So here there is a direct cl large that the plaintiff robbed the defendant. It stands alone, unexplained, without evidence of circumstances showing anything from which an inference could be drawn that the words used were to be understood in any mitigated sense, or that the person to whom they were spoken had any reason, from knowledge or information possessed by him, to understand them in any other than their ordinary meaning.

For the errors referred to relating to, the third and fourth causes of action the judgment and order appealed from must be reversed, and a new trial ordered as to such causes of action, with costs to-the appellant to abide the event.

All concur.


author: Pratt, J.

text:
    Thomas P. Wood, App’lt, v. Third Avenue Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Negligence—Street car track.
    The fact that a large number of people have passed, without accident, the manhole covers, placed over a cable railroad track, is not conclusive evidence that the construction is safe.
    Appeal from an order, granting a new trial after a verdict in favor of plaintiff.

      Thomas B. Pearsall, for pl’ff; Hoadley, Lauterbach & Johnson, for deft.
   Pratt, J.

The defendant, which operates a cable railroad, laid manhole covers in the public street opposite the Hew York entrance of the Brooklyn bridge, with a circular hole in the center of such cover If inch in diameter. The hole was open and unguarded. The plaintiff crossing the street, one of the crutches with which he walked went into the hole, and plaintiff was thrown and injured. The jury found the construction negligent, and gave plaintiff a verdict, which was set aside. Plaintiff appeals.

The defendant showed that since the manhole had been so constructed a great number pf people had crossed at that place without accident, and claimed that to be conclusive evidence that the, construction was a safe one. That view prevailed. We think that, while the safe passage of so many people was a matter proper for the consideration of the jury, the court went too far in holding that, as a matter of law, it entitled defendant to a judgment in its favor. The hole in the iron cover was large enough to admit the heel of a shoe, and, obviously, it was only a question of time when an accident would occur. It is not rare to see people with crutches, and they have a right to use the streets. The manhole covers are between the tracks, and if a lady with a high heeled shoe should . step upon the hole, it would be a happy accident if she escaped with her life. It is n'ot possible that the good fortune of defendant in escaping accidents for a season can give it a vested right to maintain such a dangerous obstruction in the public street. This is the more obvious when we learn that the only benefit' the defendant derives from the hole is that the cover can be lifted about eighteen seconds sooner than it can be if built with a notch in the side. That advantage is too trivial to be considered in opposition to the safety of the public.

Order appealed from reversed, and judgment ordered on the verdict, with costs.

All concur.