text:
    The Texas Standard Cotton Oil Co., Resp’t, v. The Mutual Fire Insurance Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Pleading—Motion to make definite—Coepobationb.
    Where a corporation is charged generally with having made false and -fraudulent representations a motion to make the pleading more definite and certain may properly he granted, as it is impossible for the corporation to determine from such pleading what may he the course of proof upon, the trial and thus have the proper persons in court to refute the charges made against it.
    Appeal from order directing answer to be made more definite and certain.

      Stein & Caiman, for app’lt; Benno Loewy, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the alleged loss of the plaintiff by fire on certain property insured by the defendant. The answer admits the issuing of the policies, denies the amount of the loss sustained and alleges that the agreement mentioned in the complaint fixing the amount of the loss was entered into by the defendant on the strength of and in reliance upon false and fraudulent representations upon the part of the plaintiff as to the amount of the loss, and that false and fraudulent statements were made by the plaintiff and its authorized agents to the defendant and its authorized agents; and that all the agreements made were made in reliance upon such false and fraudulent statements.

It also alleged that the fire by which the property of the plaintiff was destroyed or damaged was caused by the act, neglect, or. with the connivance of the plaintiff or of parties interested in said property. The plaintiff thereupon moved to have the answer made more definite and certain; and the court ordered that said answer be made more definite and certain by-inserting what false representations were made as to the amount of its loss and damage, and where and when and by-whom made, and in what respects such statements were false and untrue; and, also, when, where, and by whom a certain alleged agreement mentioned in the answer was entered into, and what'the fraud or false swearing alleged by the answer consisted of, and by whom committed; and in what the alleged neglect of the plaintiff to use means to preserve the property at and after the fire consisted of, and what loss was sustained by reason thereof. And from such order this appeal is taken.

The ground upon which the appellant rests is that the decisions of the courts of this state have been nearly unanimous, as he claims, that such a motion will not be granted where the plaintiff has all the knowledge on the question at issue in as full a measure as the defendant.

However applicable such a rule may be as to individuals, its stringency must necessarily be relaxed where one of the parties is a corporation and acts by its trustees, officers and agents; because such a plaintiff cannot be expected to have in court every agent, officer and trustee upon the trial of any cause intop which an allegation of fraud may have been injected.

The»allegations alleged to have been fraudulently made are •stated in the answer to have been made by the plaintiff or its authorized agents. The plaintiff was entitled to know before going to trial by whom, and when and where such representations were made in order that it should have the individual pres-ent upon the trial, or that it might examine him in case he should be a non-resident of the state, to meet any proof which might be offered by the defendant upon the trial. The allegation in regard to what the representations were is absolutely indefinite, and conveys no notice to the party as to what it is charged with; and the plaintiff is entitled to know with a reasonable degree of definiteness what is the claim which the defendant will urge upon the trial in order that it may make proper preparation to meet it

It is a familiar principle that where a party is charged with making fraudulent representations that he knows whether or not he did make such false representations. But when a corporation is charged with having made false representations, it is impossible for it to determine what may be the course of proof upon the trial, and thus have the proper parties in court to refute the charges made against it

It is needless to go through the various portions of this order as to which relief has been granted, because the principle which controls one controls all.

We think that none of the objections to the order which have been urged before the court are well taken. But, in the affirmance of the order, we do not intend to support in its entirety the practice pursued upon this application ; but simply to rule upon the questions which have been raised upon this appeal.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett and Barrett, JJ., concur.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Thomas Williams, Adm’r, Resp’t, v. Rebecca Gardiner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Negligence—Contiubutoky.
    Plaintiff was a tenant of defendant’s premises. His child, aged about five years, was killed by falling down a stairway, which was the only means of access to the back yard. The child was usually placed in the care of her sister, who was nine years old, and who came up the stairway with her, but left her when within two steps of the top for a moment, and on her return found the deceased in the cellar. Defendant’s counsel requested the court to charge that if the mother selected an elder child to accompany the deceased on the occasion in question, and the one so selected was negligent in caring for the deceased, plaintiff could not recover. Held, that the request was improperly refused.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying motion for a new trial.

      Artemus H. Holmes, for app’lt; John D. Townsend, for resp’t.
   Brady, J.

This action was brought under the statute to recover damages for negligently causing the death of Lillie Williams, the plaintiff’s intestate and daughter, aged four years and' nine months. ^

The defendant had a life interest in and possession of premises in Harlem. The building was three stories in height, the lower floor being rented for business purposes. The only public means of access to the privy was by going out through a door in the second, floor to a shed, which was sixteen feet or more from the yard, and from the shed to the yard by a stairway.

On the 26th of January, 1889, the plaintiff’s intestate, while returning from the privy in company with her sister, who was nine years old, fell, it would seem, from the stairs mentioned into the cellar and fractured her skull, death ensuing within a day or two thereafter.

Upon the trial it appeared, among other things, from the testimony of the mother, that she had forbidden the children going into the yard, and for the purpose of securing obedience caused them to go through her room, and tried to keep the door locked to prevent their going out, her husband being an invalid and apparently incapable of looking after them. She said, also: “ I placed the little one in charge of the other at all times; they were always together; she always looked after the little one.” “ The other,” so-called, was the daughter, Lottie Sinclair, a bright and intelligent child, apparently, who. said: Before the accident I and my sister went down into the back yard, and then came up the steps ; she was behind me, and I went into 'the house. ” And, further: When I saw her two steps from the top (that is, when they were returning) I went into the house and then out again; I did not find her two steps from the topI saw her down the cellar; when I went in I came right back; she came up the stairs, and was behind me, and when I got to the top I saw her two steps from the topshowing, it would seem, that the child was in her charge, but was abandoned for the moment when within two steps of the top of the stairway, whence she fell and was killed.

Assuming, which may be done for the purpose of the appeal, that all the legal propositions which the facts and circumstances invoked were properly stated to the jury except the one to which attention is about to be called, the omission to grant that request, embracing as it did the proposition suggested, seems to be fatal to the maintenance of the judgment

The child was not in the immediate care of either of her parents at the time the accident occurred, but was in the custody of her sister, to whose care she was generally committed by the mother, as we have already seen.

After the delivery of the charge, which was comprehensive and. in which the doctrine of negligence to be applied to the intestate as well as to the parents under the circumstances disclosed was dwelt upon elaborately, the defendant’s counsel asked the judge to charge that if the mother selected an elder child to accompany the deceased upon the occasion in question,-and the one so selected was negligent in caring for the deceased, the plaintiff could not recover. It will be remembered that the mother testified she placed the intestate in charge of the other one (that is, Lottie Sinclair) at all times; they were always together; she always looked out for the little one. The object of this request to charge was no doubt to invoke for the defendant’s benefit the rule, seemingly well established, that if in a case of this kind the parent or the guardian or person in whose custody the child is placed is guilty of negligence, there can be no recovery. The person selected as guardian or custodian becomes the alter ego of the parent, and upon the one so chosen devolves the proper care and management of the child.

A kindred question was involved in the case of Ihl v. The Fortysecond Street R. R. Co., 47 N. Y., 317, in which a child of three years and two months crossed the avenue upon which the defendant operated its railroad, in charge of a sister nine a half years of age. The court there said : The defendant relies wholly upon the proposition that the sending of the child across the avenue and practically unattended except by another child so young as the attendant in this case was proved to be, was negligence per se and further, that the refusal so to charge was not error, but that it was properly left to the jury to say whether it was negligence to permit the little daughter between nine and ten years of age to take the little boy to the drug store in the way she started to do it; that the competency of the little child to act as attendant of the deceased was matter of judgment, and there was no positive rule by which it could be determined.

The doctrine of that case, as declared by the case of Kunz v. City of Troy, 104 N. Y., 351; 5 N. Y. State Rep., 642, is that tnere must be concurrent negligence on the part of the parents or guardians, the court saying: “In the absence of negligence-on the part of the parents or guardian, the doctrine of contributory negligence has no application.” The law imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care and the infant is thereby brought into danger, and the result is injury from the negligent act of another, their negligence is deemed the negligence of the infant

Under these circumstances the refusal to charge as requested was erroneous. The intestate was evidently placed in charge of her sister, and the care taken by the latter of the former was a subject of inquiry, and should have been submitted to the jury as requested.

For these reasons the judgment must be reversed and a new trial ordered.

Judgment reversed, new trial ordered, costs to appellant to abide event.

Van Brunt, P. J., and Daniels, J., concur.


author: Bartlett, J.

text:
    Henry Moss and David Moss, Resp’ts, v. The Manhattan R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Railroads—Elevated—Evidence.
    In an action against an elevated railroad to restrain its operation and for damages, it is not reversible error to receive evidence as to the noise made by its. operation ; especially where it does not appear that the award was based to any extent thereon.
    '3. Same.
    The court excluded a general question as to the effect of the railroad station on the rental value of property in the vicinity used for the liquor business, but immediately afterward allowed the witness to testify that the proximity of the station to plaintiff’s liquor business, half a block distant, improved it. Meld, no error; that defendants were entitled to no more than this.
    Appeal from a judgment rendered at special term in favor of the plaintiffs in an action to restrain the operation of the elevated railroad of the defendants in front of the plaintiff’s property, and to recover damages for the injury done by the railroad to said property.

      Henry D. Sedgwick, Jr., for app’lts; Henry G. Atwater, for resp’ts.
   Bartlett, J.

The judgment in this case awarded the plaintiffs $3,813.48 damages and costs, and directed that an injunction should issue restraining the defendants from further maintaining or operating their railroad in front of the plaintiff’s premises, unless within ninety days they caused the plaintiffs’ easement in Third avenue appurtenant to said premises to be condemned for railroad purposes according to law, or unless they tendered the plaintiffs $5,000 for a conveyance and release of all such easements.

The appellants make three points :

First. That the damages are excessive. ■

Second. That it was error +o receive evidence as to the noise made by the operation of the .elevated railroad; and

Third. That the trial judge was inconsistent in admitting testimony that the presence oí the railway was injurious to a cigar manuiacturer in his business, while he excluded testimony intended to show that it had proved beneficial to a neighboring liquor dealer.

As to the first point, we are not satisfied that the amount at which the damages were assessed is excessive. The increase in the rentals of the plaintiff’s property since the construction of the elevated railroad may well have been due to the general rise in real estate values in that part of the city; and, indeed, there was express proof on the trial that while Third avenue property had advanced, property not affected by the road had advanced much more in comparison.

As to the second point, that the annoyance caused by noise is not to be considered as an element of damage in this class of cases, we have already expressed a contrary opinion in Ode v. Manhattan Railway Co., 56 Hun, 199; 31 N. Y. State Rep., 106. Furthermore, in the case at bar it does not appear that the award was based to any extent whatever upon the testimony in respect to noise; for there is no mention of noise in the findings

As to the third point, that the learned judge at special term was inconsistent in his rulings, to the injury of the defendants, the record shows no error. It is true that the .court sustained the objection of plaintiff’s counsel to a general question as to what effect an elevated railroad station had upon the rental value of property in the vicinity, to be used for the liquor business. But immediately afterward the same witness was allowed to testify as to the effect of the station opposite the plaintiffs’ premises upon his liquor business, half a block distant, and he declared that the proximity of the station improved it. The defendants were entitled to no-more than this.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


author: Brady, J. Daniels, J.

text:
    In the Matter of the Voluntary Dissolution of The West Side Electric Light & Power Co.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Mechanic’s lien—Priority between lienors and execution creditors, or corporation.
    Respondents sold to the corporation a portion of its plant, and filed a mechanic’s lien for the purchase price. The appellants thereafter obtained judgment against the corporation, and issued execution. A receiver of the corporation was appointed in this proceeding for dissolution, but the sheriff was permitted by the court to levy and sell under the execution. the proceeds to be retained until further order. At the sale the respondents gave notice of their lien, and the sale made was of the right, title and interest of the corporation at the date of the judgment. Held, that the sale having been made subject to respondents' lien, they were not entitled to any part of the proceeds, and the same should be paid to the judgment creditors.
    Appeal from an order denying an application directing the sheriff to pay over to Hunter & Willis a certain fund in his hands.

      Archibald G. Shenstone, for app’lts; Robert S. Rudd, for resp’ts-
   Brady, J.

The West Side Electric Light & Power Company was organized, as its name implies, for supplying electric light and power. The company leased from its president, Elsworth L." .Striker, a lot on West Fifty-third street, in New York city, and erected thereon a substantial brick building to receive its plant, viz.: engines, boilers, dynamos, etc. A large part of the plant was purchased through the firm of Charles R. Vincent & Co. (the respondents herein), the value thereof being over $7,000. The bill of said Vincent & Co. was not paid when the same became due, viz., about April 1, 1889, and upon the 29th of that month said Vincent & Co. filed a mechanic’s lien upon the said premises and plant.

Upon June 8, 1889, the appellants obtained a judgment in the city court for $1,359.05 against the West Side Electric Light & Power Co., issued execution thereon and' delivered the same to the sheriff. The sheriff made no levy thereunder until on or after June 10th (the 9th being Sunday), and upon that day Francis D. Dowley was appointed receiver of the assets of the said corporation. The appellants obtained an order permitting the sheriff to levy on sufficient property to satisfy the appellant’s judgment, but staying any sale thereunder. The sheriff made such levy upon “2 boilers, 2 engines and 1 dynamo,” the boilers and engines being those furnished for the plant by respondents herein, and all the property so levied upon being part of. the realty. Various attempts were made by the appellants to obtain permission from the court to proceed - to the sale of the property levied upon, but it was not until January 22,1890, that an order was obtained permitting said sale. Thereupon respondents obtained an order to show cause why the order permitting the sale should not be vacated, and setting up the claims of Vincent & Co. (these respondents) to a lien on the premises and on the very chattels which the sheriff was authorized to sell. It is to be noted that this was the first time Vincent & Co.’s claim was presented in court.

As a result of the hearing, an order was made by Mr.'Justice O’Brien, February 5, 1890, which permitted the sheriff to sell, but directed him to retain the proceeds until the further order of this court.

Prior to the sale, at the place and time advertised for it to be made, the sheriff was notified, ,in the presence of those there assembled, that Charles R. Vincent & Co. claimed to have a lien upon the property which existed prior to the sheriff’s levy, the result o£ which was that the sale was only of all the right, title and interest of The West Side Electric Light & Power Company which they had on the 8th of June, 1889, or at any time thereafter, in and to two boilers, two engines and one dynamo, that being the property levied upon and sold. It is contended on the part of the appellants that the asserted' lien was not a valid' one and gave the lienors no prior claim; but whether it was or not it is not necessary for the purposes of this appeal to decide. On the subject, however, see Watts-Campbell Co. v. Yuengling, 51 Hun, 302; 21 N. Y. State Rep., 186; McAdam on Landlord and Tenant, § 119, and cases cited. It is not considered necessary to decide the question, as suggested, for the reason that the sale of the articles sold was made subject to the lien of Charles R. Vincent & Co., whatever it might be, as announced at the time of the sale and is protected by the character of the sale made by the sheriff, namely, of all the right, title and interest of the West Side Electric Light & Power Company, which they had on the 8th of June, 1889, or at any time thereafter, in and to two boilers, two engines and one dynamo, the property levied upon as already stated. The purchaser consequently took the property subject to the lien of which he was advised, which still attaches to the property, and which if valid can be enforced against it, notwithstanding" its delivery to the purchaser.

• Under these circumstances the motion should have been granted.

The West Side Electric Light & Power Company having an interest in the surplus over and above the lien, assuming that claim to be valid, it was a leviable interest and could be sold as it was.

For these reasons the order appealed from should be reversed, and the motion granted, with ten dollars costs and the disbursements of this appeal.

Daniels, J.

The statement that the sale was of no more than the right, title and interest of the judgment debtor in the property sold under the execution, has not been denied or questioned. It is to be acted upon, therefore, as an established fact. And from that fact it follows that the persons claiming liens upon the property sold have no right to or interest in the money produced by the sale. That money belongs to the judgment creditors and should he paid over to them. The order should, therefore, be reversed, and an order entered directing that payment to be made, with costs and the disbursements on the appeal

Van Brunt, P. J., concurs.


author: Van Brunt, P, J.

text:
    Hester Bates et al., App’lts, v. William H. Johnson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Lease—Covenant to pat for buildings.
    A lease for twenty-one years contained covenants that on the expiration of the lease the value of the buildings erected by the lessees should be appraised and either one-half of such value paid to them or a new lease granted. It was also covenanted that in case of default in payment of rent the lessor might re-enter and remove all persons from the premises and enjoy as in their first and former estate. After twelve years the lessees defaulted and were dispossessed by summary proceedings. Held, that the condition on which the lessees were to he in a position to claim payment for the buildings was a compliance with th’e covenants in the lease, and that having made default they were not entitled to claim such payment.
    Appeal from a judgment entered upon a decision at special term dismissing the plaintiffs’ complaint upon the merits, and awarding judgment against the plaintiffs for costs.
    Action to establish and foreclose an equitable lien upon the property mentioned in the complaint for the payment of one-half of the value of the building erected on the premises.
    The opinion delivered at special term is as follows :
    Patterson, J. The principal question involved in this action,, and that which appears to me to be the one on which the cause' must be determined, is whether or not the covenant on the part of the lessor to pay to the lessee or his assigns one-half of the value of the buildings at the expiration of the term of twenty-one years, or to grant a renewal for an additional term,was dependent upon the covenant made by the lessee to pay the rent and taxes as provided for in the lease. The contention of the plaintiff is that the covenants are independent and separable, and that the lease is, in effect, a contract providing for two distinct subjects. Whether covenants are dependent or independent, or whether performance of one is a condition precedent to the right to enforce the other, does not rest on technical words, “ nor does it depend on the position of words, but it rests on the good sense and plain understanding of the contract, and the acts to be performed by the parties respectively,” Barruso v. Madan, 2 Johns., 145; ana such is the statement of the rule by Sergeant Williams, in his note to Pordage v. Cole, 1 Saund., 319, where the subject was discussed on a question of pleading arising on demurrer. The instrument in this action is the ordinary lease made by a land owner, who demises premises-for a fixed term to a lessee who obligates himself to erect buildings and pay rent for the premises, and also the taxes or other burdens imposed on the property, and gives the lessor the right to-terminate the lease on default in the payment of rent, or failure to perform any other covenant binding on him (the lessee). In consideration of the covenants of the lessee, the lessor agrees, at the expiration of the term, to pay half the value of the improvements, or to grant a further term. The nature of the obligation assumed by the lessor shows that his covenant was dependent upon performance by the lessee of those incumbent upon him. The lessor did not positively undertake to pay for improvements. He had an option to do so, or grant a new term; ana that option could not be exercised in the latter way if the lessee had no interest or estate in the land to be continued or extended at the time the first term would expire. The lease gave the lessor the power to terminate it for non-performance by the lessee of his covenants; and he having failed to perform them, and the lessor having reentered, the lessee destroyed the lessor’s ability to exercise that option. His default gave to the lessor the clear right to repossess himself of the land, and necessarily of the buildings erected upon it, and thus caused to be terminated the relations existing between the parties under the lease.
    This view is supported by Bank v. Mitchell, 73 N. Y., 406. In that case the lessee covenanted to pay rent, taxes, and assessments, and in default thereof the lessor was entitled to re-enter. If the lessee erected buildings and performed the other covenants, then the lessor agreed, on expiration of the term, either. to grant a renewal or pay for the buildings. The lessee failed to pay the taxes for the year prior to that in which the term expired. It was held that the payment of the taxes was a condition precedent, and the lessor was not bound to pay for the improvements. It is sought to distinguish that case from this because of an express provision in the lease there under consideration that if the lessee performed the covenants, etc., and if the buildings were standing at the end of the term, the lessor’s covenant should apply. But, as has been stated, no form of words and no express provision is necessary. The ground of decision appropriate in this case, however, has been announced in Kutter v. Smith, 2 Wall, 491, where substantially similar covenants were considered by the supreme court - of the United States. There, land was leased for a term of years, and the lessee erected a house upon it. The lease was terminated, as here, for the non-payment of rent, according to authority contained in the instrument, which also provided that at the expiration of the term the lessor should pay for the building at an appraised value, or renew the lease. The court says: “ The agreement to purchase means nothing more than that, in a certain event, the lessor will pay the lessee the value of the building;” that is, in case the lease is not renewed at the expiration of the term. “ This contingency has not occurred, and that it can never occur is the fault of the plaintiff and his assignor. This observation is also applicable to the supposed hardship of taking the building, the product of the plaintiff’s labor and money, without compensation. It is from the plaintiff’s own default that the right to do so arises. He had his option to pay the rent due the defendant, and retain the right of payment for his building when the time should arrive, or give up his building, and with its loss relieve himself of the burden of paying the rent. He chose the latter, with full knowledge, and there is no injustice in holding him to the consequence of his choice.” The complaint is dismissed upon the merits, with costs to the defendants, except the defendant Bingham.

      James M. Bishop, for pl’ff, app’lt; L. Sanders, for def’t Bingham, app’lt; Thompson & Koss, for resp’ts.
   Van Brunt, P, J.

This action was brought to recover one-half of the value of buildings now standing on certain lots in the city of Hew York which the plaintiffs claim to be due to them and the appellant Bingham from the defendants Johnson, the lessors, pursuant to the provisions of a lease of said property for twenty-one years from the 1st of May, 1867.

This lease contained covenants for the payment of rent, taxes, etc., upon the part of the lessees, and a grant in consideration of the covenants contained in the lease for the period of twenty-one years. It also contained a provision that in case of the non-payment of rent, or default should be made in any of the covenants contained in the lease on behalf of the lessees, that the plaintiffs should have the right wholly to re-enter on said- premises and remove all persons therefrom, and the same to have again, repossess and enjoy, as in their first and former estate, anvthing therein contained to the contrary in anywise notwithstanding. The lessees covenanted to erect a building upon the premises, of certain descriptions and dimensions, and the lease contained a mutual covenant by the parties that at the expiration of the aforesaid term the buildings upon the premises should be appraised, and either one-half of such appraised value paid to the lessees, or the parties of the first part would give a renewal lease.

The lessees defaulted in the payment of rent and taxes, and in December, 1879, were dispossessed by summary proceedings. The term of the original lease having expired in May, 1888, the successors of the lessees brought this action to have the value of the buildings appraised and the sum due and payable to the plaintiffs and the defendant Bingham under the provisions of the lease ascertained and determined, etc.

It might not be necessary to add anything to the opinion rendered by the learned judge who tried the cause in the court below; but in view of the claim which is made of the result of the decision in the case of Finkelmeier v. Bates, 92 N. Y., 172, it may not be improper to add one or two suggestions to the views which in said opinion were expressed.

It is undoubtedly true that in the case cited, where the covenants of this identical lease were under consideration, the court may have used language which might be construed into an affirmance of the claim of the appellants that the covenant to pay one-half the value of the building is an independent one, but no such question was before the court at that time, and the language used by the court was simply an answer to the question which was then before the court for its decision, and in no way was it attempted to forestall or to decide upon a claim such as is presented in the ca'sc at bar. All that was decided in that case was that the time fixed in the covenant to pay for the building was the expiration of the term and that that phrase related to time and not to the estate of the lessee.

The provision of the lease in regard to re-entry was to' the effect that in case of a default upon the part of the lessees the lossors might re-enter, re-possess and enjoy the premises in question as in their first and former estate. How, if the lessors were under an obligation to pay for these buildings at the expiration of the term mentioned in the lease, and' such obligation was a lien upon these premises, how was it possible for them to re-enter, have again, re-possess, and enjoy as in their first and former estate ? Here is a clear intention shown by the contract itself that in case of a default upon the part of these tenants the whole estate shall revert, unincumbered by anything that the lessees may have done, to the lessors, who shall hold the premises thereafter as in their first and former estate. This seems to be a clear definition of the rights of these parties; and it seems to us that these covenants were considered by the parties to be dependent, and not independent. The lessees were to enjoy the premises and to have a right to payment for the building or a renewal of the lease upon ■ condition of their performing the covenants contained in the lease. This necessarily followed from the fact that continued enjoyment of the premises by the lessees was undoubtedly contemplated, becáuse the covenant for the payment for the buildings is coupled with a covenant to renew the lease, which would be impossible if the lease had ceased to exist years before the time to claim such a renewal had arrived. All these circumstances show clearly that the condition upon which the tenants were to be in a position to claim payment for the buildings was a compliance with the covenants in the lease.

The grant is made in consideration of the rents, covenants and agreements mentioned in the lease. They were the consideration for the grant, and to say that the lessee may repudiate the consideration which he has to pay, and then claim performance of the covenants on the part of the lessor does not seem to be equitable or just, and we do not think is the law.

We think, therefore, that the judgment should be affirmed, with costs.

Daniels and Beady, JJ., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. George Frindel, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Assault—Evidence.
    ‘On the trial of an indictment for an assault in the second degree, evidence of specific acts is not admissible to prove the complainant’s character for quarrelsomeness; nor is evidence as to his general reputation in that respect admissible where the defendant does not claim that the act for which he is tried was committed in self-defense.
    2. Same—Tbial.
    A refusal by the court to take from the jury the consideration of a count charging assault in the first degree is not ground for reversal where the conviction was not under that count.
    3. Witness—'Competency—Infants.
    There is no rule or practice requiring that, where a witness is of such tender years as not to be able to comprehend the nature of an oath, his unsworn statement is to be taken for what it is worth.
    Appeal from judgment of the court of general sessions convicting the defendant of the crime of assault in the second degree.

      A. Steckler, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

This appeal presents for review the question as to the propriety of the rulings of the court in excluding evidence offered by the defendant of the complainant’s character for quarrelsomeness.

This evidence was of two classes: one, an attempt to prove specific acts, and the other, to establish the complainant’s general reputation in that respect.

It is not necessary to multiply authorities to show that evidence of specific acts is not admissible. Thomas v. People, 67 N. Y., 218.

Neither was the evidence as to general reputation admissible in view of the nature of the defense, because it was not at all claimed by the prisoner that the act was committed in self-defense. Upon the contrary, he testified that the complainant ran into the knife himself, and that the knife was not taken out for any purpose of self-defense, but simply to scare the complainant. This seems to bring the case within the principle of Abbott v. People, 86 N. Y., 470, in which it is held that testimony of a quarrelsome disposition is not admissible where, under the circumstances, there is no ground for claiming that the act for which the prisoner is being tried was committed in self-defense.

There is another reason why no error was committed in the exclusion of this testimony. At the time it was offered no evidence whatever had been given of an assault by the complainant upon the defendant; and the judge in excluding the testimony expressly stated that he excluded it at that stage of the case; and after the testimony of the defendant of an assault by the complainant no offer of the testimany was made.

Another point is raised that the counsel for the defendant, after the People had rested their case, ásked the court to take from the jury the consideration of the first count in the indictment, which charged assault in the first degree. This was refused, and the defendant excepted. The prisoner, however, does not seem to have been in any way injured by this ruling, because he was not found guilty of assault in the first, but in the second degree. It does not appear that the jury were influenced by it, nor that he was damaged thereby.

Another point raised is that a child of eight years, called as a witness for the defendant, who showed from his testimony that he had no apprehension of the nature of an oath, was not permitted to testify.

It is claimed that it is a well known practice in criminal triáis, when such a witness is called by either party, to take the unsworn statement of the witness for what it is worth. With all due respect to the learned' counsel, we are not aware of any such rule or any such practice. The law requires the testimony of wit-' nesses to be given under "the sanctity of an oath, and where a child is of such tender years as not to be able to comprehend the nature of an oath, it seems to us that the safeguards which the law has placed around human testimony would be entirely overthrown, were its statements permitted to be given.

There does not appear to be any error which calls for a reversal . of the judgment, ana it should be affirmed.

Daniels and Brady, JJ., concur.


text:
    Amelia Fuchs, App’lt, v. Francis C. Devlin et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Service—Recitals in judgment—Infants.
    A decree in foreclosure recited that the summons had been served on all the defendants; that all appeared except one, and that none were infants except the plaintiff herein, who appeared by her guardian ad litem. Feld, that the recitals of the decree were sufficient to prove service upon plainf'ff and sustain the jurisdiction of the court, at least until disproved by competent testimony.
    Appeal from a judgment in an action of ejectment, directed by the court in favor of the defendant.

      Leopold Leo, for app’lt; William JJ. Arnoux, for resp’ts.
   Brady, J.

The defendants in the action were in possession, and claimed title under a foreclosure and sale of the premises in question in an action brought by Charles P. Kirtland, committee, etc., against the plaintiff, who was then an infant, and others. The judgment in the foreclosure suit was entered in 1857.

The plaintiff’s right to recover was based upon the asserted fact that in the foreclosure suit she has not been served with process; and whether she was served or not constituted the main issue in the present action. The judgment in the foreclosure suit, which was produced upon the trial, contained a recital as follows: “ The summons in this action having been duly served on all the defendants therein, and all the defendants having appeared except the defendant Sola, and none of the defendants being infants except the said Amelia Fuchs, who appeared by her guardian ad litem, and on reading and filing the affidavit of J. B. Somers proving such service of summons in this action,” etc.

It thus appeared that the decree of foreclosure recited that all the defendants were served, and that the plaintiff herein, who was then an infant, appeared by her guardian, and that was sufficient to prove service upon the plaintiff of the summons and complaint in the foreclosure suit upon the authorities to which reference will be made. It is so explicitly decided in the case of Bosworth v. Vandewalker, 58 N. Y., 597, which was followed by a similar ruling in Pringle v. Woolworth, 90 N. Y., 508, which was not assailed or in any way infringed in the case of Ingersoll v. Mangam, 84 N. Y, 622, inasmuch as it was admitted in that case that the infant had not been served with summons in the suit, and the contention was that the appearance by the guardian ad litem was voluntary; which was entirely different from the question presented in this case.

It was said in Bosworth v. Vandewalker that the record of a judgment is prima fade evidence, and will be held conclusive until clearly and explicitly disproved, and the recitals therein may be used to establish jurisdiction. These general rules, it was further said, apply as well in the case of an infant defendant as of an adult; it is only in a case where the defendant neither answers the complaint nor appears in the action that proof of the service of summons must appear upon the judgment roll. Proof of service of the summons upon the infant is not requisite to perfect the judgment roll; its absence is not a fatal objection. The judgment showing the service of the summons upon all the defendants is sufficient to show service upon the infants and to sustain the jurisdiction of the court as to such infant defendants:

In Pringle v. Woolworth, hereinbefore cited, it was said that the ■ intendment of the law is that a court of general jurisdiction has jurisdiction both of the subject-matter and of the person; but if it appears by the record that the defendant was not served with process, and' that he did not appear in person nor by attorney, the judgment was void as a judgment in personam. And again it was held in Ferguson v. Crawford, 86 N. Y., 611, that every intendment is in favor of the validity of a judgment; the burden of proving the irregularity is upon the party questioning it, and the proof should be most satisfactory to deprive the j ndgment of its effect.

This action is one in which the plaintiff seeks rather to recover upon the weakness of the defendants’ title than upon the strength oj her own, an attempt which has not heretofore been successful in the administration of the law relating to actions of ejectment, and is not likely to be successful here. It was the duty of the plaintiff, when confronted with the testimony to which reference has been made, to establish by competent evidence relating to the subject of the service that it had not been made. No such proof was given, although the defendants by evidence aliunde the record sustained the service upon the plaintiff as recited in- the judgment record, and as contended for by the defendants in defense of their title. The counsel for the appellant relied upon what must be regarded, in view of the authorities, as a technical criticism upon the character of the record, and this was substantially all that his case presented.

An examination of the exceptions requires no change in the conclusion arrived at herein, namely, that the judgment appealed from should be affirmed, with costs. The question considered and disposed of embraces all the merits presented and determines the whole appeal.

Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    Edward J. King et al., Resp’ts, v. Albert Jacobson et al., Isaac Bernstein, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Fraud—Evidence
    In an action to replevin goods alleged to have been purchased from plaintiffs by a firm through false representations, it was shown that at the time of the sale the firm made a statement showing that they had liabilities about $2,000, and a surplus of assets of $18,000. Evidence was admitted to show that less than seven months thereafter judgments were recovered against the firm for over $11,000, and a sale of the assets on execution failed to realize that amount. Held, that such evidence tended slightly to indicate the fact to he that they were not financially as well situated as they were represented when the goods were sold, and while not conclusive, was competent to prove the facts maintained by it.
    2. Same—Burden of proof—Bona fide purchaser.
    The burden of proof is upon the party alleging that he purchased the goods or made advances upon them in good faith, to prove the fact to he so.
    Appeal ' from a judgment recovered on a verdict, and from an order denying a new trial.

      Howe & Hummel, for app’lts; Blumenstiel & Hirsch, for resp’ts.
   Daniels, J.

This action is replevin to recover the possession of sixty-five dyed sealskins. They were sold and delivered by the plaintiffs to Jacobson & Perlson, who were engaged in business at Chicago. The sale took place on or about the 16th day of November, 1887. This firm failed early in June, 1888. The skins before that, and early in the year, are stated to have been sold and delivered to M. Wein & Go;, who claimed to have become their purchasers in good faith and for value. Mr. Wein of .this firm after that sent them to the appellant Isaac Bernstein at the city of New York, who alleged that he had in good faith advanced upon the skins to Wein & Go. the sum of $1,200. When the possession of the skins by the defendant Bernstein came to the knowledge of the plaintiffs they brought this action to recover them, on the ground that the sale by them had been ‘ induced by fraudulent, representations made by Jacobson & Perlson.

The evidence to prove this fact was given by Gustav N. Cohn, who was the plaintiff’s salesman, .and had the skins with him for sale at the city of Chicago. He testified that before he delivered the skins he asked Mr. Jacobson, who purchased them for his firm, for a statement. And that Jacobson replied that he had a stock of about $9,000, $5,000 outstanding, cash $3,200, machinery $2,000, with liabilities about $2,000, showing a surplus of about $18,000. To provd this statement untrue, six judgments were shown to have been recovered against Jacobson & Perlson on the 8th day of June, 1888, for the aggregate sum of $11,865.88, and their property at the sale under the judgments failed to realize that amount. These judgments were objected to'as evidence by the defendant Bernstein, who alone was served with the summons and appeared in the action. The objection was that the evidence was irrelevant, incompetent and immaterial, which the court overruled, and the defendants’ counsel excepted. But it was relevant and pertinent to prove that the purchasers of the skins did fail at that time, and that their property proved insufficient to satisfy the judgments, which seem to have been recovered with their assent. That proof slightly tended to indicate the fact to be that they were not financially, as well situated as they were represented to be by Jacobson when the skins were bought by his firm. If they had been, then there was an improbability that their circumstances should have undergone so great a change as to produce this failure during the intervening time of less than seven months. This evidence was not conclusive by any means, but still it was competent to prove the facts maintained by it. And it may be that a verdict standing upon this alone, as proof that the representations were false, would have to be set aside. But that point is not in this case. For the printed book is not stated to contain all the evidence, and there may have been still further proof on this subject, which with that already stated disclosed the falsity of the representations which had been made. Indeed in the absence of the statement that there was no further evidence, it is to be assumed that there was, and that it was sufficient with that set forth to- sustain the conclusion of the jury. Their verdict, therefore, cannot be set aside because of any deficiency in the evidence to prove the representations to be false.

An exception was also taken to proof of what Perlson had said after the failure. But this exception is not important, for he •made no statement in the least degree injurious to the defendant.

In the submission of the case to the jury the court directed them that the burthen of proof rested upon the defendant to prove a purchase of the skins from Jacobson & Perlson in good faith, or advances made upon them by the defendant acting in the same manner, if the plaintiffs satisfied 'them that they had sold and delivered the skins under fraudulent representations. And to that the defendant’s counsel excepted. But the court was entirely right in this legal rule. It was for the party alleging that purchase, and that advancement of money, to prove.the fact to be so, if that could be done. It was a defence within the knowledge of the defendant, and to be proved by evidence directly available to him, if it existed, and not to the plaintiff, and, therefore, for the defendant to maintain. Mather v. Freelove, 3 N. Y. State Rep., 424; Seymour v. McKinstry, 106 N. Y. 230, 240; 8 N. Y. State Rep., 580; 11 id., 760.

The demand made upon the defendant for, the return of the skins has also been objected to as insufficient. But any defects in the proof concerning it will he supplied by the form in which the case was made. For other proof may be assumed to have been produced from the absence of the statement that the case, as it has been made, includes it all Beyond that, the complaint alleged:

Y. That prior to the commencement of this action the plaintiffs duly demanded from the said defendant Bernstein the return and possession of the said goods and chattels, and the said defendants wholly refused to return the same and give possession thereof to these plaintiffs.

And that was expressly admitted by the answer, which in that manner did establish a complete demand of the skins from the defendant and his refusal to deliver them.

The motion for the nonsuit raised no point of importance, for the reasons urged in support of it were unimportant. And both the decision then made, and the verdict rendered finally by the jury, are sustained by the presumption that all the evidence has not been inserted in the case, arising out of the absence of any statement that it has all been presented. There is no ground on which the appeal can be supported, and the judgment and order should be affirmed.

Van Brunt, P. J., and Brady, J., concur.


text:
    Ellen Paul, Individually and as Ex’rx, App’lt, v. Julia Van Da Linda, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Bills and notes— Pleading-.
    The complaint in an action upon a promissory note alleged that defendant and one 8. were partners, and that the firm, for value received, made and delivered to plaintiff the note in suit. The answer did not deny these allegations, but denied knowledge as to the division to be made of the amount of "the note between plaintiff individually and as executrix, and alleged that the note w..s made by S. without defendant’s consent, and was not given in the course of the firm business nor for a firm debt. Held, that by not denying the allegations of the complaint the partnership and the malting of the note were admitted, and that a prima facie case was made out by the pleadings and production of the note.
    2. Same.
    To prove the defeme set up, defendant’s partner, S., was sworn and testified that the note was given for a debt owing by defendant’s husband for money borrowed by him to put in the firm as capital, and that defendant was not present and did not authorize or sanction the giving of the note in t le firm name; but upon cross-examination it appeared that he had testified differently on a previous examination in relation to the transaction. Held, that his testimony was thereby impaired so as to require its submission to the jury, and that a direction of a verdict for defendant was error.
    Appeal from a judgment recovered on the direction of a verdict at the circuit and from an order denying motion for a new trial.

      Coleridge & Hart, for applt; A. Simis, Jr., for resp’t.
   Daniels, J.

The action was brought to recover, by the plaintiff in her own behalf and as executrix of the estate of her deceased husband, the amount of a promissory note given to her on the 18th of October, 1885, for the sum of $2,500. This note was subscribed with the name of A. P. Stevens & Co., and it was alleged in the complaint that the firm of A. P. Stevens & Co. consisted of Augustus P. Stevens and Julia Van Da Linda, the respondent. The complaint alleged that they were associated in business as copartners under that name at the city of Brooklyn on the 12th of October, 1885, and made the note in suit, whereby they promised to pay at 74 Court street on demand after the date thereof, to the plaintiff or order, $2,500 for value received, and delivered the note to the plaintiff.

The answer of the defendant Van Da Linda did not deny these allegations contained in the complaint. The only denial contained in the answer was the want of knowledge as to the division which was alleged should be made of the amount of the note between the plaintiff individually and as executrix. A further defense was interposed by the answer that the note had been made by Stevens and delivered to the plaintiff without the consent of this defendant Van Da Dinda, and that it was not given by him in the course of the business in which they were engaged, nor for any debt owing by the firm of Stevens & Co., and that she was not indebted to the plaintiff, either individually or as executrix.

The failure to deny the making and delivery of the note by the firm to the plaintiff, together with its production by her upon the trial, was presumptive evidence in her favor, entitling her in the first instance to maintain the action for the recovery of the amount unpaid upon the note. For by not denying these allegations of the complaint the partnership was, in fact, admitted, and so was the making and delivery of the note, and the legal presumption upon its production, although it was not stated in the note to have been given for value received, was that it was founded upon a good consideration. 1 Parsons on Bills and Notes, 2d Ed., 175. Anthony v. Harrison, 14 Hun, 198, 217; Bottum v. Scott, 11 N. Y. State Rep., 514.

It was not necessary to proceed further to make out the plaintiff’s case by actual proof of the fact that the note had been made in the business of the company. For prior to the time when it was made, chap. 381, of the Laws of 1884, had gone into effect, providing that a married woman, as this defendant was at the time the note was given, may contract to the same extent and with like effect and in the same form as if unmarried, and that she and her estate shall be liable thereon, whether the contract relates to her separate business or estate, or otherwise, and that a charge upon her separate estate shall not be necessary to create that liability. The case accordingly was prima facie made out by the pleadings and the production of the note in evidence.

The burden was then upon the defendant Van Da Linda under her answer to prove that this note was not given in the course of the business of the partnership or for any liability existing against the firm. And to sustain that defense,' the other member of the firm was produced and examined as a witness in her behalf, and his testimony was to the effect that this note was given to the plaintiff on account of a debt owing from the husband of the defendant Van Da Linda to her for money which had been loaned and advanced by her and put into this business when he himself was a partner with the other defendant Augustus P. Stevens, that she was not present at the time when the note in suit was given, did not authorize it, and in no manner had sanctioned the use of the firm name for this object, and it was upon the testimony given by this witness that the verdict was directed at the trial. But in the course of the cross-examination of this witness it was shown that he had been previously sworn and examined concerning these transactions, and that the evidence given by him was at variance with that which was obtained from him on this trial. These contradictions of his testimony given upon the trial were material, and tended to reduce his credit as a witness in the statements which he made, and that so far impaired the strength of his evidence as to require it to be submitted to the jury. If he was right in what he testified to, that the note was not given for the firm indebtedness, or for any liability of the defendant Van Da Linda, and without her assent or authority, then it was not binding upon her. But whether this was the fact or not was for the jury to decide. The defense was not so fully made out as justified the withdrawal of the case from the jury, and the plaintiff’s counsel requested the court to submit it to the jury. That request was denied and an exception taken to the denial. The exception appears to have been well taken under this state of the evidence, and the judgment and order should be reversed and a new trial directed, with costs to the appellant to abide the event.

Brady, J., concurs.


author: Ruger, Ch. J.

text:
    Alfred Manahan, Resp’t, v. The Steinway & Hunter’s Point Railroad Company, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)
    Negligence—Crossing in front of street cars.
    A careless boy, with his eyes open to the danger incurred, attempted to cross a track in front of a moving street car and, erring in judgment as to the chances of doing so safely, was knocked under the car by the dashboard and injured. Held, that the railroad company was not liable.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff for $2,738.45, entered on verdict.
    Action for injuries alleged to have been caused by defendant’s negligence.

      Geo. W. Stephens, for app’lt; J. Warren Lawton, for resp’t.

       Reversing 30 N. Y. State Rep., 362.

   Ruger, Ch. J.

We think'the plaintiff failed to prove that the injury received by him was attributable to any act of negligence on the part of the defendant. The omission to prove this fact is quite as fatal to the action as a neglect to prove the absence of contributory negligence. While both of these essential facts may be established by circumstantial evidence, it must be by the proof of such facts as will support a legitimate inference of the existence of the issuable facts required to be established by the plaintiff. The only suggestion of negligence on the part of the defendant consists in a claim that the car driver accelerated its motion as the boy was crossing the road.

The case was submitted to the jury by the trial judge on this theory alone, and there is nowhere a hint of any other circumstance upon'which a claim of negligence could be predicated. The difficulty with this claim is that there is no legal proof to support it, or circumstances from which it can be legitimately inferred.

The plaintiff testified that he looked and saw the car and had time to cross the track. In truth the experiment demonstrated that he erred in judgment, and instead of clearing the car horse he ran against the dash board, and it is only by assuming the infallibility of the judgment of a boy twelve years of age that any basis is claimed to have been established for the further assumption that the motion of the car had been accelerated. This mere guess of an inexperienced boy cannot be made the basis of a finding of fact by a jury. The driver of the car at the time the accident occurred was a competent man who happened to be a passenger, and was employed by the regular driver to relieve him while the latter was temporarily engaged in expelling a gang of lawless boys from the back platform of the car which they had hung around for several blocks and had once already by their accumulated weight on the back part of the car thrown from its track. This temporary driver was called as a witness for the plaintiff, but was not questioned upon the point whether he had at any time whipped up the horse. His whole evidence, however, tended to rebut the inference that he had done so. This witness had no interest in the transaction, and his evidence produces the impression that he was a careful and conscientious narrator of the facts witnessed by him. Heither the plaintiff, who was a witness for himself, nor the two boys, who were called to corroborate his version of the transaction, state that there was any whipping of the horse, or acceleration of speed after the plaintiff attempted to cross the track. The 'plaintiff states, expressly, that he did not see the driver whip up the horse.

. The evidence, upon the plaintiff’s own version, shows the case of a careless boy, with his eyes open to the danger incurred, attempting to cross a track in front of a moving car and erring in judgment as to the chances of doing so safely.

There was an almost overwhelming preponderance of evidence against the version of the transaction given by the plaintiff, and: to show that he was one of the party who were unlawfully attempting to invade the car. But for the purpose of deciding this appeal we have chosen to assume the truth of his evidence and consider the case upon his own statement.

We are of the opinion that it fails to establish a case against the defendant. There are, also, circumstances in that' evidence quite inconsistent with the theory of the plaintiff’s freedom from contributory negligence; but we rest the decision of the case upon the fact of the absence of proof of negligence on the part of the defendant

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

, All concur.


author: Andrews, J.

text:
    Chas. A. T. Rodrian, Adm’r, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Negligence—Railroad crossing—Omission oe signals.
    The mere omission of statutory signals by trainmen does not relieve the pedestrian from the imputation of negligence if he fails to look in each direction and listen for approaching trains.
    2. Same.
    Intestate who was familiar with the crossing approached defendant’s track with a small shawl tied or pinned over her head and ears. There was no evidence that she looked up or down the track before attempting to cross, or stopped or listened, but looked directly in front of her. Held, that the burden of proof upon plaintiS to show that intestate was free from contributory negligence or exercised due care was not in any way met or discharged:
    3. Same.
    While intestate’s attention might have been diverted by a freight train passing on the north track in the opposite direction, from which she was in no danger, or by the ditch across the highway two feet from the track, yet these things did not justify her in crossing without looking up and. down the track for trains.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for new trial.

      Henry W. Taft, for app’lt; Arthur T. Hoffman, for resp’t

       Reversing 28 N. T. State Rep., 625.

   Andrews, J.

It has, in view of the decisions in this state upon the subject, become a postulate that due care requires a pedestrian before crossing a railroad track to look in each direction \o ascertain whether a train is approaching, and that the mere -omission of the statutory signals by the trainmen does not relieve the pedestrian from the imputation of negligence if he fails on his part to look and listen. He cannot omit such a reasonable pre-caution in reliance upon the performance by the railroad company -of its obligation to give reasonable notice of the approach of the train.

Whether the duty imposed upon the traveler has been discharged may be, and often is, a question involved in doubt. The -evidence may justify opposing inferences. In such case the question is for the jury.

There is another rule equally well established in this state: that •the plaintiff in an accident case assumes the burden of showing that the injury occurred without fault on the part of the person injured, or of giving evidence from which the jury may infer that he was without fault and that his act did not contribute to the casualty.

If in case of an accident at a crossing it appears that the person inj ured did look for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not 'look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be ■shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation. The presence of other and imminent dangers, the raising of gates erected by the company to guard the highway, .giving assurance that the crossing was safe, these and similar circumstances appearing, they might be considered in determining whether the person injured, who did, in fact, look and listen before ¿attempting to cross the track, fairly discharged the duty imposed upon him, although it should appear that if he had looked at .another instant of time, or had looked last in the direction from which the train was approaching, he would have seen it

In case of a death accident at a railroad crossing, it must often happen that the circumstances immediately preceding it and the acts and conduct of the deceased are léft in great obscurity. But the rules of law governing the right of recovery are the same as in other cases, although slighter evidence of compliance with the ■duty cast upon a plaintiff might be deemed sufficient than where the injured person was alive and competent to testify. We cannot perceive that the burden resting upon the plaintiff to show, or "to give evidence tending to show, or from which the jury might find, that his intestate was free from contributory negligence, or ■exercised due care, was in any way met or discharged. The cir■cumstances so far as disclosed seem to point to the opposite conelusion. The intestate was familiar with the crossing. She approached the track with a small shawl tied or pinned over her head and ears. There is not the slighest evidence that she looked up or down the track before attempting to cross, or stopped, or listened; the only evidence being that she appeared to be looking directly in front of her.

The alleged obstructions, upon the most favorable view of the evidence, left the track on which the train came free to observation for at leadt 700 feet from a point on the highway eight feet from the south track, and from thence to the track. The intestate’s attention may have been diverted by the freight train passing on the north track in the opposite direction, from which she was in no danger, or by the ditch across the highway two feet, from the track, or by both circumstances combined. But these things, although they may have induced thoughtlessness as to the real danger, did not justify her in proceeding without looking up and down the track for trains. Adherence to established rules, leaves us no option, and the judgment must be reversed.

Judgment reversed, and new trial granted, costs to abide event.

All concur.


text:
    Enos T. Throop, App’lt, v. The Hatch Lithographic Co., Resp't.

      (Court of Appeals,

      Filed February 24, 1891.)

    Corporations—Director cannot secure preference over other creditors BY ATTACHMENT—1 R. S., CH. 18, TIT. 4, § 4.
    1 R. S., ch. 18, tit. 4, § 4, prohibits the acquisition by a director of an. insolvent corporation, who is also a creditor, through the process of attachment, of a preferential lien on the corporate assets.
    (Earl, Peckham and Gray, JJ., dissent.;
    Appeal from judgment of the supreme court, general term, first department, affirming order vacating an attachment against-defendant’s property.

      Henry W. Taft, for app’lt; J. H. Rogan and, H. F. Lawrence, for resp’t.
   Andrews, J.

It is undisputed, and the fact appears in the affidavits upon which the plaintiff’s attachment was procured, that the corporation defendant, of which the plaintiff was a trustee and 'stockholder, was at the time of issuing the attachment and for a long time prior thereto had been hopelessly insolvent to the knowledge of the plaintiff. It also appears by the affidavits that the company while in this condition had executed mortgages on its property .and had given offers of judgment, in favor of various creditors with a view of giving preferences contrary to the statute. This was the very fraud upon which the apnl''cation of the plaintiff for an attachment was based. It is al undisputed that the plaintiff had a valid debt against the cc «'my, and that he had protested against the company permit-ti - references by mortgage or judgment and had urged the comp. •• to take proceedings for the appointment of a receiver, with a view to the equal distribution of the property of the company among its creditors.

The plaintiff in commencing this action and procuring his attachment was not acting in collusion with the trustees, but distinctly in hostility to the board of directors and the officers of the company.

The question presented is whether, under these circumstances, the attachment issued was in contravention of § 4, title 4, chap. 18, parti, of the Revised Statutes, which is as follows: “ Whenever any incorporated company shall have refused the payment of any of its notes, or other evidence of debt, in specie or lawful money of the United States, it shall not be lawful for such company or any of its officers to assign or transfer any of the property or choses-in action of such company to any officer or stockholder of such company, directly or indirectly, for’ the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of insolvency, to any person or persons whatever; and every.such transfer or assignment to such officer, stockholder or other person, or in trust for them or their benefit, Shall be void.”

With some hesitation we have reached the conclusion that the true construction of the statute prohibits the acquisition by a director of an insolvent corporation, who is also a creditor, through the process of attachment, of a preferential lien on the corporate assets. The general object of the statute is plain, viz.: to secure equality among creditors and to prevent fraudulent transfers in fraud of their rights. The statute provides for two contingencies, ■first, where the corporation has refused payment of its notes or other evidence of debt, and is in default, it prohibits any subsequent assignment or transfer by the corporation or any of its officers, directly or indirectly, of any of its property, to any officer or stockholder in payment of a debt, and, second, it prohibits any transfer or assignment whatever, on any consideration, to an officer, stockholder or other person, in contemplation of insolvency. The refusal of a corporation to pay its notes or obligations at maturity is generally a suggestion of insolvency. But whether, such refusal results from a disability of the corporation to meet its obligations, or is based on other reasons,, will ordinarily be best known to the officers and stockholders, and the law, for the protection of the body of creditors against favoritism, interdicts the corporation and its officers, while the default continues, from making preferential transfers of the corporate assets to officers or stockholders in payment of debt, without inquiry and irrespective of the fact whether the corporation is then Solvent or insolvent.

The actual .insolvency of the corporation defendant when the attachment in question was issued is conceded. The only question is, was the procuring by the plaintiff of the attachment lien a transfer or assignment by an officer of the corporation of the corporate property within the statute ? The plaintiff by the attachment and seizure thereunder secured a preference over other creditors of the corporation. The title to the property levied upon was not changed by the seizure. The attachment was a step in a proceeding which had for its ultimate object the transfer of the title through a sale on an execution upon the judgment which might be obtained in the action and to enable the plaintiff thereby to realize the payment of his debt

We suppose it cannot be doubted that an assignment of corporate assets may be made under guise of a judgment, and that an attachment lien acquired by the plaintiff with the aid and connivance of the corporation would be an assignment or transfer of the corporate assets within the statute. The proceeding here was strictly hostile as between the plaintiff and the corporation, and in this it is insisted the distinction lies. We have recently held in Varnum v. Hart, 119 N. Y, 101; 28 N. Y. State Rep., 262, that the statute does not restrain one whose relation to the corporation is that of a creditor merely from availing himself of legal proceedings for the collection of his debt, and that he is entitled to a preference. acquired in ordinary course of legal procedure, notwithstanding the insolvency of the corporation. This decision would govern here except that the statute not only inhibits an assignment or transfer by a corporation under the circumstances spfecified, but also by any officer. It is true that the plaintiff as director only had no power over the corporate assets. He could neither assign nor transfer them to himself or any one else by his own act. But the plaintiff in place of procuring an assignment or transfer by the voluntary action of the corporation, procured what is equivalent by legal process issued on his application.

Construing the language of the statute in connection with its obvious policy, we think a construction which disables an officer of an insolvent corporation from acquiring a preferential lien on the corporate assets by legal process is justified.

The construction given below is salutary, and in many cases will prevent frauds upon the statute which could not be proved. It seems, moreover, somewhat anomalous that a violation by the corporation of the statute prohibiting preferences among creditors should be the ground upon which another creditor should be enabled to obtain a preference. There is ample remedy for the violation of the statute by the corporation of which the plaintiff complains.

The general question presented here was considered with great care in the case of Kingsley v. First Nat'l Bank of Bath, 31 Hun, 329, and the opinion of Barker, J., in that case presents with great force the reasons for the construction herein given to the .statute.

The order should be affirmed.

Ruger, Ch. J., Finch and O’Brien, JJ., concur; Earl, Peckham and Gray, JJ., dissent

       Affirming 33 N. T. State Rep., 880.


author: Peckham, J.

text:
    The People ex rel. Augustus F. Soer, Resp’t, v. Austin O. Crane, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. National guard—Term “ court martial ” does not include a delinquency COURT.
    The term “ court martial” in the statute, Laws 1888, chap. 332, § 18, does not include a delinquency court, and the provision that no one shall be brought to trial before a court martial without service of a copy of the charges, does not apply to a trial by a delinquency court. The notice for an enlisted man to appear before a delinquency court is still provided by § 113, chap. 299, Laws 1883.
    2. Same—Service op notice.
    It is not necessary for the sergeant in his report that he duly served the delinquents by mail to state that the postage had been prepaid.
    3. Same.
    Sections 72 and 73 have no application to delinquencies in the nature of failures to appear for drills, etc., of a regular nature in the armory or other appointed place pursuant to the by-laws of the organization.
    4. Same.
    A notice for a delinquency court served by mail on the fifth, for the appearance of the relator in the same city on the eighth of the same month is due notice.

    5. Same—Approval op company by-laws.
    Section 21, chap. 332, Laws 1888, substituting the Judge Advocate General in the place of the Division Judge Advocate as the proper person to approve company by-laws, did not invalidate the by-laws theretofore existing which had been duly adopted and approved by the Division Judge Advocate. As to future by-laws the act would apply.
    6. Same.
    Section 131 of the Military Code, for the enforcement of certain fines for offenses against the by-laws of a company, provides for such enforcement by a delinquency court where they have already been imposed by some other tribunal and a return made to the delinquency court, and has no application to fines imposed by the delinquency court itself.
    7. Same.
    The company had power under § 139 of the Military Code to adopt a by-law imposing a fine for non attendance at drills, so long as the moneys to be raised by company dues were devoted to the proper, reasonable and ' legitimate purposes of the company.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment of regimental court martial, fining relator for delinquency at drill and non-payment of company dues.

      Alfred B. Campbell and Almet F. Jenks, for app’lt; John J. Leary, for resp’t

       Reversing 29 N. Y. State Rep., 825.

   Peckham, J.

(1) The relator claims that the delinquency court never acquired jurisdiction over his person.

The return of defendant to the writ of certiorari shows that a summons was duly served upon the relator, warning him to appear before the court at a day and hour at a place therein named, “ to answer for certain delinquencies with which you are charged.” The alleged delinquencies, their nature, and the date of their occurrence were stated in the summons, which was served by mail There were no other or formal charges or specifications ever made out or served upon the relator, who claims that no one could be tried before a court martial unless a copy of the charges were served upon the accused in advance of the hearing, and he refers to chap. 382, § 18, of the Laws of 1888, amending the Military Code, as his authority for the claim. That amendment provides that no person shall be brought to trial before a court martial unless a copy of the order convening the court and of the charges and specifications shall be delivered to him a certain time in advance of his arrest, etc.

We think the court before which the relator was summoned to appear was not a court martial within the meaning of the Military Coda That Code was passed in 1883, and is known as chap. 299, of the laws of that year. By that act (Section 100) it was provided that the military courts of the state should be:

1. Courts of inquiry.

2. General courts-martial.

3. Delinquency courts, which are of two kinds:

1. For officers.

2. For enlisted men.

By § 104 it is provided that a commander of a regiment or battalion might at any time appoint a delinquency court for the trial of enlisted men, and that the order for such court, stating the time and place of meeting thereof, should be served * * * at least five days before the time of meeting. This section said nothing about the service of a copy of the charges, as is stated by the learned judge in his opinion in this proceeding at general term.

It was the order for the court which was to be served.

Section 113 provided for the president of a delinquency court, directing a non-commissioned officer * * * to summon delinquents to appear at a time and place to be by him appointed.

Section 114 provided that no person should be brought to trial before a general court-martial unless a copy of the charges were delivered to him in advance.

In 1886 (chap. 412), the Military Code was amended, and the provision in § 104, as to serving the order for a delinquency court upon the delinquent enlisted man was omitted, and the matter of notice was thus left to § 113, which provided, as already stated for the service of a summons.

In 1888 (by chap. 332), the Code was again amended, and § 100 was so amended as to provide for garrison, as well as for general courts-martial. Section 114 was also amended by striking out the word “ general ” before “ court-martial,” thus leaving the section to read: “ No person shall be brought to trial before a court-martial unless a copy of the order convening the court, and of the charges and specifications shall be delivered,” etc. It is claimed that by dropping out the word general,” and providing that no one should be brought to trial before a court-martial without service of a copy of the charges, a court of delinquency is included.

I think not. The word “ general ” was omitted from § 114 by the amendment of 1888, and the same act amends § 100 by creating a garrison court-martial, and the amendment of § 114 was necessary in order to make the section apply to the garrison court-martial, then for the first time created, as well as to the general court martial which had existed prior thereto. It did not by the term “ court-martial ” include a delinquency court The Code recognizes a distinction between the different courts, and by § 100 calls them all military courts, but subdivides them into four different kinds, as mentioned in the section. The Code frequently speaks of courts martial and delinquency courts, and evidently it was not supposed that the mention of the former kind of court included the latter. By § 126 it is provided that “ the president of any court-martial or any delinquency court,” etc. Section 127 says: For the purpose of collecting any fines or penalties imposed by any courts-martial or delinquency courts * * *. Section 129 : Any officer or enlisted man fined by a general court-martial or delinquency court. Section 115 and 116 provide for the proceedings after sentence by a court-martial, while § 117 provides for such proceedings after sentence by “any delinquency court”

The phrasing of § 73, referred, to by the relator, is not such as to alter our view of the clear distinction made throughout the Code between courts-martial and delinquency courts. It was used in § 73 with reference to the character and effect to be given to a return of the non-commissioned officer upon the trial of any person returned as delinquent, and the distinction between courts-martial and delinquency courts was there quite unimportant, and regarding the whole section in connection with those preceding it, the fact that a delinquency court is included there in the expression “ court-martial ” may readily be conceded.

We think, therefore, that the question of notice for the enlisted m an to appear before a delinquency court is still provided for by § 113. It is true the section does not provide for any stated length of the notice, but it is clear that it must be reasonable, considering all the facts and circumstances in regard to the individual case.

(2) It is also said that it does not appear that the notice was properly served, in that it is not stated that the postage was prepaid on such notice. The defendant returns that the notice was duly served on the relator and states that it was duly directed to him at 300 Hicks street, Brooklyn, or P. O., Brooklyn, which is his place of residence and usual place of business as appears by the roster.

The sergeant’s report of service is that he duly summoned the delinquents (the relator among them), and that he served him by mail.

By the statute of the United States pre-payment of postage is necessary. A service could not be duly made by mail without its pre-payment. The statute which provides for the service of the summons on the enlisted man by mail does not in so many words provide that the postage shall be prepaid, but it must be assumed that such prepayment is a necessary act to render the service by mail a valid one. I think where the return to the writ states that the service was duly made, and where the sergeant reports that he has duly summoned the delinquent by serving by mail, we may assume a prepayment of postage, which is necessary in order to render it due service by mail. To a limited extent perhaps it may be said that it is a question of law whether it was duly served, but upon the question of the prepayment of postage the rule is so plain and is so universally known that we may regard if as a statement of fact that postage was' prepaid, where the person asserting the service of a notice by mail says that it was duly served. We are'the less inclined to assert its invalidity where the relator does not pretend that in fact he did not receive the notice.

(3) The relator also claims that the record does not show that he was warned in regard to parades or drills as required by § 72, and that the return or affidavit of warning as required by § 73 is not present in the record.

. It is plain that neither section has the least application to delinquencies in the nature of failures to appear for drills, etc.,,of a regular nature, in the armory or other appointed place, pursuant to the by-laws of the organization. Section -68, of the Military Code, permits drills of this nature in the evening when ordered by a majority of the members of the organization and so prescribed in the by-laws. The by-laws of this organization were returned and -they show a provision for the assembling of the company for drill and instruction every Wednesday evening, and a. provision for paying the expenses of the company. Section 103 of the Code provides only for delinquency courts for the trial by commissioned officers below the rank of brigadier-general, and has no application here.

The return to the writ shows that a delinquency court was appointed by the commander of the Fourteenth Regiment, FT. Gr. S. FT. Y., the regiment including the company of which‘the relator was a member, and that among the returns of the delinquencies forwarded to the court was that against the relator. Section 755 of the regulations for the government of the FT. (x. (which, by § 138 of the Military Code, have the same force and effect as the provisions of this act") provides that in delinquency courts the return of delinquents, on which will be noted the date and matter of the delinquency, takes the place of formal charges and specifications. The delinquencies were specified in this return with their nature and the day on which they were alleged to have occurred. By § 757 of the regulations, in the absence of the accused after due notice to appear, the court will consider his delinquency as established and examination waived. The return shows that the notice was served by mail on the 5th of February, for the appearance of the relator in the same city on the 8th of the same month. This was due notice. The relator failed to appear and he was fined by default The record shows that complete jurisdiction over the relator was obtained by the delinquency court.

(4) The relator also claims that the court obtained no jurisdiction over company dues, because it is not shown that the bylaw's were approved by the judge advocate general as provided by the law of 1888, chap. 332, § 21. But the by-laws were adopted at a time when the approval of the judge advocate of the division was requisite, instead of the judge advocate general Sec.139 of Military Code of 1883. Such approval it appears was obtained and the by-laws were, therefore, properly adopted and were in force at the time of the delinquencies on the part of the relator, although they occurred subsequently to the passage of the actof 1888. By § 21 of chap. 332, of Laws of 1888, the judge advocate general was substituted as the proper person to approve bylaws in the place of the division judge advocate. All by-laws thereafter adopted were necessarily to be approved by the judge advocate general. The passage of the amendatory act did not, however, invalidate all by-laws theretofore existing, which had been duly adopted and approved by the division judge advocate. They remained as valid as they had been and were not affected by the amendment. As to future by-laws the act would apply.

(5) Provision is made by § 131 of the Military Code for the enforcement of certain fines for offences against the by laws of a company, and the relator contends that the conditions contained in such section before the enforcement can be proceeded with do not appear by the record to have been complied with. We think that section has nothing to do with this case. It provides for the enforcement of fines and dues by a delinquency court, where such fines or dues have already been imposed by or before some other tribunal or in some way not mentioned, provided a certified copy of the proceedings relating to the infliction of such fines, with a copy of the by-laws, rules aud regulations, have been returned to the delinquency court which is to enforce payment of such fines. This has no application to such fines as are imposed by the delinquency court itself. The fine by the delinquency court is provided for by § 123 of the Military Code.

(6) We think that § 139 of the Code authorized the particular by-laws in question. A small fine for non-attendance at drills duly appointed by by-laws has been customary for many years, and we think the company had power under the above section to adopt the by-laws. So long as the moneys to be raised by company dues are devoted to the proper, reasonable and legitimate military purposes of the company, and not to purposes wholly separate therefrom, we think the by-laws providing for the collection and disposition of the dues are good.

(7) It is also said that the return shows no trial. It shows a proper summons, and a failure to appear on the part of the relator. The proceedings show that the court considered the evidence adduced, and fined the relator as stated therein. The testimony need not be recorded under § 756 of the regulations, and we must assume that there was evidence enough of a legal character to enable the court to decide upon the matter, and sentence accordingly.

We have carefully looked through all the proceedings in this case, and are of opinion that no error was committed therein, and that the court proceeded with jurisdiction over the person of the relator when it sentenced him to pay the fines set out in the case. The order of the general term setting aside the findings and decree of the court should, therefore, be reversed, and the writ of certiorari dismissed, and the proceedings 'of the court affirmed.

All concur.


author: Corlett, J.

text:
    Siragan S. Costikyan, Adm’r, Resp’t, v. The Travelers’ Insurance Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Pleadhtq—Action on insurance policy.
    The complaint alleged the issuing of an accident ticket by defendant to' one B., who met his death by accident; that B. mailed the ticket to one Bertha Beman, who filed proofs of loss, but defendant refused to pay; that plaintiff is the administrator of B., and has obtained such ticket, and demanded judgment for its amount. Held, that the complaint stated but one cause of action, and that under the facts therein stated defendant would be fully protected in paying the money to plaintiff.
    Aepeal from an order of the Erie special term, denying defendant’s motion requiring plaintiff to elect between causes of action or to make the same more definite and certain.

      Clinton B. Gibbs, for app’lt; Abram Bartholomew, for resp’t.
   Corlett, J.

The complaint alleges, in substance, that on the 27th day of June, 1888, the defendant, at the city of Chicago, issued an accident ticket insuring Stephen K. Babasinian against-accidents in the sum of $15.00 a week, or $3,000 if death occurred. That on the 26th day of the same month, in Niagara county, this state, the insured met his death by an accident on the -Rome, Watertown & Ogdensburg railroad.

That on the 17th day of September, 1888, letters of administration were issued to -the plaintiff in Cook county, Illinois, and on the 24th day of June, 1889, ancillary letters were granted to him in Erie county, in the state of Now York. That the insured mailed the ticket to Bertha W. Beman, who served proofs of loss on the defendant and made claim to the insurance. That the defendant refused to pay her on the ground that she did not represent the estate of the insured. That finally the plaintiff obtained the ticket or insurance policy, and Bertha W. Beman released her claim to the insurance. The complaint demands judgment for $3,000.

The defendant made a motion at the Erie special term, requiring the plaintiff to elect between the different causes of action alleged to be stated in the amended complaint, or to make the same more definite and certain. The motion was denied, and the defendant appealed from the order to this court.

There does not appear to be any obscurity in the amended complaint It alleges the issuing of the ticket, the sending it to one Bertha W. Beman; that after his death she claimed the money, which the defendant refused to pay; that the plaintiff became administrator of the deceased; that letters were issued to him in Illionis and also in the county of Erie; tha Bertha W. Beman delivered the ticket to him, surrendering all claim to the insurr - -c money. The administrator thereupon brought this action.

No reason is seen why the action is not well brought. The administrator is the personal representative of the deceased, and is entitled to recover the amount secured by the policy. But a single cause of action is stated in the complaint. There is nothing in it indicating that anybody else except the administrator is the owner of the policy or entitled to the moneys due upon it. After the receipt of the money by him, if he is not the real owner, he must account to the person who is. Upon the facts stated in the complaint, the defendant would be fully protected in paying the money to the plaintiff.

The order of the special term was right, and should be affirmed.

Dwight, P. J., and Macomber, J., concur.