text:
    Henry A. Gilbert, Resp’t, v. Leonard G. Quinlan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    ■Contract -To pay one commissions for business brought by him— When it may be terminated.
    Defendant agreed to give plaintiff one-half the commissions actually received by him from custom brought him by plaintiff. Owing to a reduction in commission rates made by the Chicago Board of Trade^ a city with which defendant dealt, he notified plaintiff that he could not pay him commissions on business in the future. Held, that defendant had a right to terminate such a contract after the lapse of a reasonable time and for a good motive ; that his action must be in good faith and not simply to avoid payment of commissions.
    Appeal from judgment entered upon verdict of a jury and from order denying motion for new trial.

      Hatch & Warren, for app’lt; W. W. Niles, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for services in procuring customers for the defendant, who was a stock and grain broker, which the plaintiff alleges, he became entitled to by procuring a customer for defendant by the name of Miner.

The contract sworn to by the plaintiff was that defendant agreed to give him half commissions for all the custom that the plaintiff brought him.

There was a question in the case as to whether this one-half applied to the total' amount of the commissions upon the transactions or only to the amount of the commissions actually received by the defendant, which question was resolved by the jury in favor of defendant

It is conceded that Mr. Miner was first introduced to the defendant by the plaintiff, and that his transactions through the defendant were to a considerable amount; and the jury found that the plaintiff was entitled to commissions received upon the whole of these transactions.

It was sought to be proved by the defendant that by reason of a change in the rules of the board of trade of Chicago he could not pay commissions to the plaintiff upon these transactions in the then future, and that he notified the plaintiff of the termination of their agreement, and that all the transactions with Miner which formed the basis of the subject matter of this action took place after such notification.

The fact that he gave the plaintiff such notification was corroborated by disinterested witnesses, and is, indeed, admitted by the plaintiff. He says, upon cross-examination, in answer to the question: “ Can you tell anything that was said about Miner and your business relations in that conversation ” (referring to a, conversation had between the plaintiff and the defendant in regard to the change of rates made by the board of trade), “ Nothing except that I told Mr. Quinlan that Miner was trading there, and of course that he had to keep on paying me the same as he had done; that I should not stand it unless he did; I brought the customer there, and after he got fairly settled, he did not want to pay me any more.” He said further: “It came up between myself and Quinlan that he did not want to pay me any commissions.”

This evidence clearly shows that conversations substantially as claimed by defendant in regard to the payment of commissions-did come up, and that defendant had notified the plaintiff that he would not pay him any more commissions in consequence of the change of the rules made by the board of trade, sworn to by the-defendant and two of his witnesses.

In the submission of the case to the jury the court instructed the jury that this contract was one which could not last forever. It was one that was terminable at the election or option of either party; that it would have been proper for the plaintiff at any time to have taken his customer to another broker; and it was entirely competent for the broker at any time on giving reasonable notice to have said to him: “ The relation which existed here-between Miner, your customer, and myself, is now severed, and hereafter it is terminated.”

There was no exception to this charge; but the court was requested by plaintiff to charge that in a contract like that if they find the agreement was to pay half the commissions on that customer’s trade they must stop trading with the customer so he will be turned back or else they must have the plaintiff assent to the termination of the contract, one or the other.

This the court declined to charge and an exception was taken.

The jury found a verdict in favor of the plaintiff and from he judgment thereupon entered, and from the order denying mo-ion for new trial on the ground among others that the verdict as contrary to the evidence, this appeal is taken.

It is clear upon an examination of the evidence in this case that if the instruction of the court in reference to the terminable character of the contract was correct the verdict is against the evidence.

The only question submitted to the jury outside of the question as to the amount of the commissions was as to whether the notice of termination of the contract claimed by the defendant had been given.

That such notice was given was testified to distinctly by the defendant, and two witnesses, and their evidence was in no respect shaken. That such notice was given seems to be conceded by the testimony of the plaintiff given upon cross-examination as above stated.

It is true he says that at this conversation neither of the two witnesses who were examined on behalf of defendant were present. But the language of the plaintiff is entirely inconsistent with the idea that such notice was not given. He says: that the defendant had to keep on paying him the same as he had done and he should not stand it unless he did. And in another place that the subject came up between himself and the defendant, that he did not want to pay him any commissions; and in another place that there was not any one present when Quinlan told him he would not pay him any more commissions. And in answer to the question: “ How many times did he tell you he would not pay r ” he answered: “He told me once; I do not recollect Mm telling me any more.”

This was a clear corroboration of the testimony of the defendant and his witnesses that this conversation did take place, and that this notice was given. There was no evidence whatever contradicting in any material particulars the evidence of the notification, and the jury should have found in favor of the defense upon that issue.

There is only one other point to be considered, and that is whether upon the whole case as matter of law the plaintiff was entitled to the direction of a verdict for the amount for which the jury rendered their verdict.

That depends upon whether the request to charge which has Been adverted to was correct, and that it was error to refuse it.

We do not think that a contract of the kind mentioned mortgages a customer forever. It is true that such a contract cannot be terminated at once, but only after the lapse of a reasonable time and for a good motive.

But the simple notification of the cancellation of such a contract does not prevent the having of dealings by a party with that customer at some subsequent time without being liable to the payment of commissions to the introducer. Good faith must be at the foundation of the action of the party seeking to terminate the contract. He cannot terminate the contract merely for the purpose of getting rid of the payment of commissions. But where a good reason arises and proper notice is given the contract may be terminated. The agent, if he chooses, may take his customer elsewhere, if he has sufficient control over him so to do, which it would appear in this case from, the evidence that he did not have.

The cases cited upon the part of the appellant, namely, Briggs v. Rowe, 4 Keyes, 424; Briggs v. Boyd, 56 N. Y., 291; Sibbald v. Bethlehem Iron Co., 83 id., 378, and Wylie v. Marine Nat. Bk, 61 id., 415, have no application whatever to the case at bar; they all being cases in respect to employment for particular services which had not been accomplished by the broker.

Upon the whole case we are of the opinion that the verdict was against the weight of evidence and that the order denying the motion for a new trial should be reversed upon that ground; that the judgment should also be reversed upon payment by the appellant of the costs of the trial; and that a new trial should be ordered, with costs to appellant to abide the event.

Daniels, J., concurs.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Magdalena Rollwagen, App’lt, v. Arthur G. Rollwagen, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    L. Tenants in common—Receiver.
    Where it appeared in an action by a tenant in common of real estate for the appointment of a receiver that the plaintiff had not been called upon to pay any of the interest which had accrued upon taxes, where payment was alleged to have been improperly deferred, and that complaints made to the board of health of New York in respect to the sanitary condition of the property were not unusual and that the defects had been remedied, Held, that the action could not be maintained.
    ■ Evidence — Matters subsequent to action brought cannot be shown.
    Complaints to the board of health made subsequent to the commencement of the action, were held to have been properly excluded.
    Appeal from a judgment at special term dismissing plaintiff’s lomplaint.

      C. H. Bovee, Jr., for app’lt; Jacob F. Miller, for resp’t.
   O’Brien, J.

The complaint alleges in substance that the laintiff is the owner of an estate in seven undivided fifteenths of tie premises; that Emily S. Rollwagen is seized of an estate in ower in said premises subject to the life estate of plaintiff, and lat the defendants, Florence M. and Arthur 0. Rollwagen, own íe fee subject to said life interests.

These premises consist of four houses in the city of New York, ad the real purpose of the action is to secure the appointment of receiver of the rents and profits.

Subsequent to the entry of the decree under which the interests : the parties were fixed and in September, 1879, the defendant mily S. Rollwagen entered into possession of the property and 3gan collecting the rents by consent of the parties.

The grounds urged for the appointment of- a receiver are the leged mismanagement of the premises in the following parinlars:

First. That the taxes were not paid promptly, and by reason ereof the said property had been advertised for sale by the city.
Second. That she failed to keep said property filled with good tenants.
Third. That she failed to keep the premises in repair, so that the board of health filed complaints.
Fourth. That excessive charges were made for repairs.
Fifth. That unreasonable delay ensued in rendering accounts and in paying to plaintiff her just proportion of the rents.

It will not be claimed, I think, that upon the trial any effort was directed to sustain the allegations that defendant failed to keep the property filled with good tenants, or that excessive charges were made for repairs.

This would leave to be considered the testimony offered in regard to the non-payment of taxes promptly, the failure to keep the premises in repair, and the unreasonable delay in rendering the accounts and paying to plaintiff her just proportion of the rents. At the outset a serious question is presented as to whether this action will lie. The relief sought is an injunction and a receiver. These are provisional remedies incident to ends, but no1 ends in themselves. Ro right of property is disputed or invaded, and I should be inclined to the view that the action itself coulc not be maintained, were it not that a construction can be given tc the complaint from which it may be assumed that the action ii one for an accounting in which as an incident therein it is sough to have a receiver appointed. It is unnecessary, however, to de termine this question, for, assuming the action itself to be main tamable, there has been an utter lack of that proof which wai essential to entitle the plaintiff to any relief.

In regard to the question of the payment of taxes, while it ma; be conceded that they were not paid it is equally true that prio to the commencement of this suit the taxes, with interest thereon had all been paid by defendant. By the delay no damage re suited to the plaintiff. For though she paid her proportion of th taxes, she was not asked to contribute anything towards the pay ment of the interest that had accrued thereon from the time c confirmation down to the date of payment.

As to the complaints from the board of health, while it ha been shown that these were made, we must remember that tb property in question consisted of tenement houses, and the cha: acter of the complaints were neither unusual nor extraordinary Besides, it was shown that whatever complaints were made pric to the commencement of the action, the defendant complied wit the same to the satisfaction of the board of health.

The effort to show that subsequent to the commencement < the action additional complaints were made by the board of healt was properly excluded for the reason that whatever rights plain iff may have had for the maintenance of the action were such ; accrued prior thereto.

As to delay in gendering accounts and paying plaintiff her ju proportion, while some proof is offered to show that at interva considerable delay ensued, this was in part explained by showii that the character of the occupants was such that it was impossib to collect the rents from the tenants promptly.

Thus explained, the delay was not so unreasonable or willful as to deprive defendant of the management of the property.

That accounts have been rendered and accepted without objection as to their correctness is not seriously disputed, and it is difficult to see upon what theory they are now to be disturbed in the absence of allegations of proof showing mistake or fraud or both. And neither of these things is alleged or proved.

Plaintiff’s grievances and complaints, if they ever had any substantial foundation, were of the past and had no existence at the time of the commencement of the action. The most that could be said is that plaintiff’s ideas of the manner of managing the property did not in all respects agree with the defendant’s; but in the absence of proof showing acts of mismanagement which resulted to the plaintiff’s injury, no ground for action is shown. For instance, plaintiff insists that the rents could be collected to better advantage by an agent to whom a commission was paid than by the defendant herself. Defendant’s position with reference to the appointment of an agent has been, that it would not only entail additional expense for commissions but also risk a percentage on repairs made to the premises being paid by those doing the" work to the agent, without securing any greater rentals or fuller )ccupancy.

As to their respective positions in reference to employing an igent the proof would seemingly favor the defendant’s, for it is shown that while the rents of the premises formerly in charge of m agent were but $5,500, they have under the defendant’s management steadily advanced until at the present time they amount ;o about $7,500.

It is hardly necessary to ádd that it is the defendant’s duty to reep the premises in a tenantable condition, to pay the taxes sromptly and to render accounts and pay the plaintiff her proporion thereof without unreasonable delay, and for a failure in these espects the plaintiff in a proper action would have a cause of omplaint. But after an examination of all the evidence in this ase it is reasonably certain that at the time of the commencement if this action no adequate reason existed, nor was any proof offered vhich would have justified the court in taking the management f the property from the possession of the defendant, where it had ieen placed by consent of the parties, and turning it over to a reeiver. The exceptions which were taken both to the admission f some of the defendant’s evidence and to the exclusion of some f plaintiff’s, have been examined and are not such as would jusify a reversal of the judgment. We are of opinion, therefore, rat the disposition made of this case upon the trial by the learned idge in dismissing the complaint was proper and the judgment íould therefore be affirmed, with costs and disbursements.

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


text:
    Henry C. Howell, Adm’r, App’lt, v. Allen G. Newman, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Dower—Unless a doweress assert her right in some form during HER LIFE IT DOES NOT SURVIVE HER.
    Where a widow assigned her dower and right of dower and died without taking any proceedings in any form to recover dower, Held, that neither her assignee, nor the personal representatives of such assignee, could maintain an action either to enforce a lien therefor or to admeasure the same or to recover a sum in gross in lieu thereof.
    Appeal from order dismissing complaint on the pleadings anc directing exceptions to be heard in the first instance at genera term.

      James M. Lyddy, for app’lt; John J. Davenport and A. B. Tap pan, for resp’ts.
   O’Brien, J.

This is an action for the recovery of dower righ brought against the estate of and beneficiaries under the will o the late Thomas Gardiner, by the plaintiff, as the personal repre sentative of the assignee of such dower right.

The widow and doweress by deed dated the 18th of Octobei 1888, assigned her dower and right of dower to Sallie A. Howel plaintiff’s intestate, who subsequently died August 7, 1889, an< this action was commenced after her death, October 5, 1889. H action for admeasurement in any shape was brought in the life time of Emma Gardiner.

The sole ground upon which the complaint was dismissed wa that an action for dower commenced after the widow’s death wi not lie. If this ground is well laid it- is unnecessary to discuss th other questions raised upon this appeal as to whether or not th will creates a trust estate incompatible with dower and therefoi compelled an election by the doweress.

A consideration of the character of the action itself will dete: mine whether, or not, after the death of the widow, it can 1 maintained.

The judgment upon the allegations of the complaint asked f< is “ that the plaintiff have dower of all the testator’s lands, an that the same be set off and admeasured,” and in the alternate “ that a gross sum be decreed.”

It will thus be seen that the present action is not a proceedir under the Code by the widow for dower assigned or for damages f< withholding dower, but is an action to admeasure dower. T1 judgment to be entered in such an action is that provided l § 1613 of the Code, which authorizes judgment awarding tl widow during her natural life actual possession of a certain portic of the property, or that she be paid a certain sum annually du ing her life, and that damages may be awarded her for withhol ing dower.

Whatever doubt may have existed at common law as to ti right to assign, it has been settled in this state that a widow dower right, although not admeasured, is an absolute right which is assignable. Pope v. Mead, 99 N. Y., 201; Payne v. Becke 87 id., 153. While, therefore, the assignment made by Emma Gardiner to Sallie Howell of her dower right, if any existed, was valid, it still remains to be determined what effect the death of Mrs. Gardiner had upon such right prior to its being admeasured.

Authorities can be cited for the maintenance of an action to admeasure dower, brought by the assignee. But in all the cases it will be found that such right was recognized and enforced only during the lifetime of the widow.

In Kyle v. Kyle, 67 N. Y., 407, it is said by the Revised Laws, 1 Rev. Laws, 60, § 1, she might prosecute at any time in her life.”

The dicta to be found throughout the opinion in this case will show that the court was of opinion that such an action could Dnly be maintained during the lifetime of the doweress. In the case of McKeen v. Fish, 33 Hun, 30, affirmed in 98 N. Y., 645, is i direct authority against the appellant’s contention. In that case he appellant’s testatrix commenced an action to have her rights )f dower determined. A reference was ordered, and before any nterlocutory judgment was entered the widow served a consent n writing agreeing to receive a gross sum in lieu of dower.

Subsequently, and while the action was still pending and prior 0 the determination thereof, she died. The trial proceeded, and ubsequently the referee found and reported a state of facts that rould have entitled the widow, had she been living, to some right f dower. Davis, J., in the course of the opinion, says: “Weare f opinion that at the time of the death of the plaintiff’s testatrix, er action, notwithstanding the filing of the consent, had not iached a state or condition in which she was entitled to claim a ested right to a gross sum of money, equal to the value of her ower in the property or any part thereof. A different state of lings might exist if her right of dower had been determined and íe proceeds in the action had reached a stage in which the court ad adjudged that a sale of the premises be made. * * * Un1 it has been determined whether a parcel or parcels will be set $ the widow or a sale ordered and the value of her life inter-it invested and paid to her, after she is adjudged to be entitled dower, her right; beyond mesne profits, remains a mere naked id inchoate life estate and terminates on her death.” This is a rect authority which in no way conflicts with the cases cited by e appellant as authorizing an action by an assignee for allotment dower, for upon examination the latter will all be found to be ses where actions were brought during the lifetime of the dow.

Emma Gardiner, the widow in this case, having died before the mmencement of this action, the period during which a distinct reel of the property could be laid by, or a sum in lieu thereof, d expired, and in the absence of statutory provision authorizing s action it must be deemed to have abated on her death. It is ar, therefore, from the authorities that the claim to dower as re asserted is not a lien upon the testator’s land, and the widow ping died without action, neither her personal representatives nor the. personal representatives of her assignee can assert any such claim or maintain an action either to enforce a lien or admeasure or recover a sum in gross in lieu thereof.

The right of the doweress, therefore, not having been asserted in some form during her lifetime, does not survive her. The exceptions taken by the appellant upon the trial must, therefore, be overruled and judgment, ordered in accordance with the direction of the trial judge, in favor of the defendants, dismissing the complaint, with costs and disbursements to each of the respondents.

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


author: O’Brien, J. (dissenting.) Van Brunt, P. J. Daniels, J.

text:
    Robert G. Bushnell, App’lt, v. Parker Bros. & Co., Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Removal of cause—Motion to bemand must be made in federal coubt.
    The state court has no jurisdiction to entertain a motion to vacate an order removing a cause to the federal courts. If the proceedings to remove are claimed to he irregular for any cause the motion to remand ■ should be made to the federal court.
    (O’Bbien, J., dissenting.)
    Appeal from an order denying plaintiff’s motion to vacate an order of removal of the cause into the circuit court of the Unitec States.

      H. B. Closson, for app’lt; Wm. H. Arnoux, for resp’t.
   O’Brien, J. (dissenting.)

The statements in the petition filec to obtain a removal of the case which are essential to present thi questions involved upon this appeal are that the matter in disputo in the suit exceeds the sum of $2,000; that the controversy i between citizens of different states; that the defendant is a Penn sylvania joint stock company or corporation, and a citizen am resident of the city of Pittsburgh, in the state of Pennsylvank and that the plaintiff is a citizen and resident of the state of Hex Jersey.

The removal act of March 3, 1887, as amended August lc 1888, provides (§ 1) that the circuit courts of the United State shall have jurisdiction “ of all suits of a civil nature at commo law or in equity * * * in which there shall be a controvers between citizens of different states, in which the matter in disput exceeds, exclusive of interest and costs, the sum or value c $2,000.”

Section 2 provides that “any suit * * * may be remove into the circuit court of the United States for the proper distrk by the defendant or defendants therein being non-residents of thi state.”'

At the outset of the confusion and uncertainty that has arisen is important to determine what is the proper practice upon motion of this character. It is contended by defendant that it w<‘ improperly made in the supreme court and that it should hax been made on a motion to remand, in the circuit court of tl United States. It is desirable that some uniform rule should 1 adopted to prevent what has frequently happened when the state court has refused to remove, viz., having the judgment subsequently set aside by the supreme court of the United States for the error of the state court in refusing a removal. Under the removal act it is the presentation of a sufficient petition and bond that ipso facto and eo instanti removes the suit. It does not result, therefore, from any action taken by the state court upon the presentation of the proper petition and bond.

If the petition be sufficient no action taken by the state court can remove the suit, nor can any refusal by it to act prevent the removal.

In Stone v. South Carolina, 117 U. S., 430, it is said that “ a state court is not bound to surrender its jurisdiction of a suit on a petition for removal until a case has been made which, on its iace, shows that the petitioner has a right to the transfer ” (citing jases). It is undoubtedly true, as was said in Steamship Company v. Tugman, 106 U. S., 118-122, that upon the filing of the jetition and bond, the suit being removable under the statute, the urisdiction of the state court absolutely ceases and that of the jircuit court of the United States immediately attaches; but still, is the right of removal is statutory, before a party can avail himlelf of it he must show upon the record that his is a case which ¡ornes within the provisions of the statute.

As was said in Insurance Company v. Pechner, 95 U. S., 183, 85, “ his petition for removal, when filed, becomes a part of the ecord in the cause. It should state facts which, when taken in onnection with such as already appear, entitle him to the trans-er. If he fails in this he has not in law shown to the court that t ‘cannot proceed further with the suit.’ Having once acquired urisdiction the court may proceed until it has been judicially in-armed that its power over the cause has been suspended."

The mere filing of a petition for the removal of a suit which 5 not removable does not work a transfer. To accomplish this íe suit must be one that may be removed, and the petition must bow a right in the petitioner to demand the removal. All issues £ fact made upon the petition for removal must be tried in the ircuit court, but the state court is at liberty to determine for self whether on the face of the record a removal has been fected.

Without deciding whether or not the United States court can roperly entertain a motion to remand based solely on the petition, tere is both reason and authority for holding that the state court is jurisdiction to entertain the motion for a denial of the petion for a removal where the same is based solely upon the petion itself and raises no disputed question of fact, but simply one : law. It can determine whether taking all the allegations of e petition, as true, it makes out a case for removal under the atute.

On the other hand, if the plaintiff wishes to deny any of the legations of the petition and in that way to raise a question of 3t, he must make that motion upon answering affidavits to the ieral court which alone has jurisdiction upon such applications to determine questions of fact as distinguished from questions of law.

In Burlington Railway v. Dunn, 122 U. S., 513, the court says: “ The record closed so far as the question of removal is concerned when the petition for removal is filed and the necessary security furnished. It presents then to the state court a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to he true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court has the right to decide for itself and if it errs in keeping the case and the highest court of the state affirms its decision, this court has jurisdiction to correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal.”

The proceeding to obtain the removal ex parte simply requires the presentation of the petition and bond, and the only act of the judge receiving the same is to accept the petition and approve the bond. It is evident, therefore, that a plaintiff after a proceeding thus taken by the defendant without notice to him has a right tc move to vacate the ex parte proceeding by a motion upon notice properly made to the court, and thus is brought before it the same questions with the same right to pass thereon as if the origina application of the defendant had been noticed.

This practice was followed in the case of Hunter v. Charter Oak Ins. Co., 1 New York Daily Reg., March 13, 1888. There an ex parti proceeding was had and subsequently upon the plaintiff’s motion for defects appearing on the face of the papers, the order wa¡ vacated by the court at special term, Mr. Justice Barrett saying “ This court had jurisdiction to determine the question of lav arising upon the disputed facts set out in the petition (122 U S., 513.) And in the case of inadvertent acceptance of the petit ion and bond, to reject the latter and proceed in the cause (32 Fed Rep., p. 644).” The case of Chamberlain v. Trust Co., 11 Hun 370, which is a decision of this court, is relied upon by the defend ant as an authority against the right of the court to entertain th motion ; but an examination of that case will, I think, show tha it is in complete harmony not only with the view expressed by Mi Justice Barrett, but the decision quoted of the United State supreme court.

In the opinion in that case Davis, J., says : “ The only ques tions which we have any power upon this appeal to consider ar whether the petition did set forth the jurisdictional facts require by the act of congress, and whether the security offered was sue as to call for its approval by the court below. For * * * i the court below had jurisdiction to make the order upon the fact presented and found, and upon the bond or security given, it order was completely effective to transfer jurisdiction to the cii cuit court of the United States, and to divest this court of a. jurisdiction of the case. ”

It is true the court held, the questions involved arising outsid the petition itself, that the appellant’s remedy was by a motion in the United States circuit court to have the cause remanded. It will be noticed, however, that the decision expressly recognizes the right of the state court to consider and determine whether the petition sets forth the jurisdictional facts and as to whether the bond offered called for its approval by the court below. The motion in this case, therefore, having been made upon the petition and there being no disputed questions of fact, the court below was in error in intimating that the practice was an application to the circuit court to have the cause remanded. The motion, therefore, having been properly made, it remains to be determined whether it was rightly decided.

Upon the part of the appellant it is contended that the petition was defective in two particulars :

First. That it- did not allege that the defendant was not also a resident of the state of Hew York and failed to deny the allegations of the complaint that for many years it had carried on business here; had an office and a large amount of property here.
Second. That the statement that defendant is “ a Pennsylvania joint stock company or corporation,” being in the alternative, is wholly insufficient, because it is impossible to determine whether the status of citizenship in Pennsylvania is predicated of “the joint stock company,” or “the corporation.”

This brings us to the consideration of the real question on this appeal.

The petition here states that the defendant is a Pennsylvania corporation and citizen of that state, and a resident of the city of Pittsburgh in that state. This is claimed by the appellant to be lefective because it does not in addition allege that the defendant vas not a resident of the state of Hew York, contending that vithin the meaning of the word as used in the removal act a corjoration is a “ resident ” of any state where it regularly maintains m office and carries on its business and owns property.

A lamentable conflict exists between the circuit courts in differ-mt sections of the Union upon this important question of renoval. « On the one hand it has been held in numerous cases that , corporation though carrying on business in several states can Lave a residence only in the state in which it was created; so that he averment that the corporation was created under the laws of certain state precludes the idea that it may become a resident of nother state, and is sufficient in the petition for the removal of a ause from a state to a federal court. Myers et al. v. Murray, Neilson & Co., 43 Federal Rep., 695; Fales v. Railway Co., 32 id., 73; Henning v. Western U. T. Co., 43 id., 97; Purcell v. The British Land, etc., Co., 42 id., 465; Filli v. D. L. & W. R. R. Co., 37 1., 65; Booth v. Manfg. Co., 40 id., 1.

On the other hand it has been held that “ a corporation is a itizen of the state under whose laws it is organized. For the pyroses of suing and being sued it may become a resident of each ;ate in which it does business under state law. The rule under le removal act of August 13, 1888, as to natural persons is aplicable to corporations. When a corporation of one state is sued in the courts of another state, a petition for removal is not sufficient unless it alleges in addition to the usual averments .as to citizenship that it is a non-resident of the state in which it is sued. Zambrino v. Galveston Railway Co., 38 Federal Rep., 449 ; Riddle v. N. Y., L. E. & W. R. R. Co., 39 id., 290; Scott v. Texas Land & Cattle Co., 41 id., 225.

As was said by Shiras, J., in Myers v. Murray, Neilson & Co., supra; “In the conflict of the rulings in the circuit courts resort must be had to the decisions of the supreme court. J! cite a few thereof.

“In Insurance Company v. Francis, 11 Wall., 210, it is said: ‘A corporation can have no legal existence outside the sovereignty by which it was created. Its place of residence is there and can be nowhere else; and like a natural person it cannot change its domicil at will, and although it may be permitted to transact business where its charter does not operate, it cannot on that account acquire a residence there.’ ”

See, also, Ex parte Schollenberger, 96 U. S., 377 ; Railroad Company v. Koontz, 104 id., 5; Pennsylvania R. R. Co. v. St. Louis A. & T. H. R. R. Co., 118 id., 290.

In Muller v. Dows, 94 U. S., 444, it is said: “A corporation itself can be a citizen of no state in the sense in which the word is used in the constitution of the United States. A suit may be brought in the federal courts by or against a corporation, but in such case it is regarded as a suit brought by or against the stockholders of the corporation, and for the purposes of jurisdiction it is conclusively presumed that all the stockholders are citizens of the state which by its laws created the corporation.”

In Railroad Company v. Koontz, supra, Mr. Chief Justice Waite, in delivering the opinion of the court, says: “ A corporation may, for the purposes of suit, be said to be born where by law it it created and organized, and to reside where by or under the authority of its charter its principal office is. A corporation, therefore, created and organized under the laws of a particular state and having its principal office there, is under the constitution anc laws for the purpose of being sued, a citizen of that state," posses sing all the rights and having all the powers its charter confers.

“ It cannot migrate or change its residence without the consent express or implied, of its state; but it may transact businesi wherever its charter allows, únless prohibited by local laws. Suet has been for a long time the settled doctrine of this court. I must dwell in the place of its creation arid cannot migrate to an other sovereignty.”

It may be true that the word “ resident ” as used in the Code (§ 636), relating to attachments, and in § 54, chap. 358 of the Law,' of 1863, as construed in the case of The People v. Platt, 117 N. Y. 159; 27 N. Y. State Rep., 149, received a different interpretation, ye it must be remembered that the question here involved is the con struction of the word “resident” as used in the removal act, anc that being a statute of the United States, we should look to th federal courts for a determination as to its meaning as thu used.

In our opinion the weight of authority is in favor of the view taken by the judge below, holding that the defendant for the purpose of removal under the act of congress of 1888 cannot be considered a resident of any state other than the state of Pennsylvania, under whose laws it was chartered.

Assuming, therefore, that the weight of authority is in favor of the construction as contended for by the respondent, it is still insisted that the petition is defective and fatally so in that it alleges that the defendant “Is a joint stock company or foreign corporation organized under the laws of the state of Pennsylvania, etc."

It is urged that although the defendant, if a corporation, could remove the case, it certainly could not if it be a joint .stock company. The petition leaves it uncertain. which of the two the defendant is; nor is it to be assumed that these appellations of “ joint stock company ” and “ corporation ” are synonymous; for we know that the former has been held to be a mere partnership. It is necessary that the petition should distinctly aver the jurisdictional facts, and we do not think that an allegation in the alternative is such a distinct averment. Moreover upon a question of ousting this gourt of jurisdiction the presumption with regard to a sworn statement should be that where it is susceptible of two constructions that one should be given which is against the person making it. The alternative statement in the petition implies at least that defendant is a joint stock company. Assuming, therefore, the statement to be that the defendant is a joint stock company the question is presented similar to the one that arose in Chapman v. Barney, 129 U. S., 677, where the court in delivering the opinion used the following language: “ But, aside from all this, we are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and, under repeated decisions of this court, must be considered.

The ground upon which the jurisdiction of the federal court is invoked is that of diverse citizenship of the parties. In Robertson v. Cease, 97 U. S., 646, 649, it was said that “where jurisdiction depends upon the citizenship of the parties, such citizenship or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings; or they should appear iffirmatively and with equal distinctness in other parts of the record.

“ On looking into the record we find no satisfactory showing as :o the citizenship of the plaintiff. The allegation of the amended petition is that the United States Express Company is a joini-stoclc company, organized under a law of the state of New York, and a fitizen of that state. But the express company cannot be a citizen :>f New York, within the meaning of the statutes regarding jurisliction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegaion that it is a corporation. In fact the allegation is that the iompanv is not a corporation, but a joint-stock company; that is i mere partnership. * * *

“ The company may have been organized under the laws of the ■state of Hew York, and may be doing business in the state, and yet all the members of it may not be citizens of the state.”

This defect in the petition being a jurisdictional one, calls for a reversal of the order, with costs and disbursements, but without prejudice to defendants filing a new petition.

Ordered accordingly.

Van Brunt, P. J.

I do not concur in the result of this opinion. I think that the motion to remand the cause should be heard in the United States courts, as no adjudication that we can make will ■deprive that court of jurisdiction, if they hold the allegations o: the petition to be sufficient, which they may very well do.

The order should be affirmed, with costs.

Daniels, J.

I agree that the approval of the bond, and filing that with petition, transferred this action to the United States circuit court, and this court was thereby divested of its jurisdiction over it. If the proceeding was for any cause irregular, the motion to send the action back to this court on that account should be addressed to the circuit court. And this court accordingly can do no less than to affirm the order of the special term.


author: Corlett, J.

text:
    Mary O. Putnam, Resp’t, v. Margaret Wigg, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Animals—Liability of owns® of vicious dog.
    When a person having control of a dog which is in the hahit of jumping at horses’ noses while they are traveling, with full knowledge takes him with him while traveling on a public street, the risk of injuries resulting from the dog’s habits falls upon the owner.
    Appeal by the defendant from a judgment in Livingston -county, entered upon the verdict of a jury, and an order denying a motion for a new trial.

      E. A. Nash, for app’lt; Charles J. Bissell, for resp’t.
   Corlett, J.

In June, 1888, the plaintiff, a married woman, who lived in Mount Morris, was driving a horse attached to a top buggy in that village. She was accompanied by a female companion. The horse was about eighteen years old and kind. On the same day the defendant was driving, accompanied by a large dog owned by her, a short distance behind the plaintiff. As she approached the plaintiff’s buggy, the dog ran ahead, sprang at the head of the plaintiff’s horse and caught him by the nose. The dog let go, and then caught the horse a second time. The horse reared again and backed the buggy into the ditch. At this juncture a little conversation occurred between the plaintiff and defendant, and at the same time the dog went snapping at the horse’s heels. While the horse was backing, the plaintiff struck him with the whip. The dog left about that time. The person with the plaintiff jumped from the buggy, but the plaintiff remained in her seat, endavoring to manage the horse. After she struck the horse with the whip it gave a sudden jerk, and the plaintiff was thrown upon the road-bed and injured.

This action was brought in January, 1889, to recover damages for that injury. Issue was joined, the cause was tried at the Livingston circuit in February, 1890, before a justice and jury, and resulted in a verdict of $1,400 for the plaintiff. A motion was" made for a new trial on the minutes, which did.not include the ground of- excessive damages, and the motion was denied. The defendant appealed to this court from the judgment entered upon the verdict and the order denying the new trial.

The evidence on the part of the plaintiff tended to show that the defendant had owned the dog for several years; that she was accustomed to take the dog with her when travelling about the .streets; that the dog had frequently jumped at the heads of horses when they were being driven, to the defendant’s knowledge; that •on one occasion in June, 1888, he jumped at the head of a horse driven by one Mills, causing the horse to throw up its head, and eliciting some caustic remarks on the part of the driver. At another time in the same .month when the defendant was travellingin a buggy followed by the dog, the animal jumped at the horse •of one John Van Dorn who was driving ahead of her, and that he sprang at his horse’s nose, and the horse lunged sideways ; the driver held a tight rein, shouted to the dog and he left; that in May of the same year while one Della Case was riding with her husband in Mount Morris, the defendant was also driving, accompanied by the dog, which sprang at the head of the horse, causing the animal to throw his head up and the dog again sprang at it The defendant then called the dog away.

That some four years before the trial a child' was playing with the defendant’s daughter, when the dog bit her, of which tire defendant had notice; that on another occasion the dog made an attack with exposed teeth in apparent anger on some children and the defendant called him away.

The evidence further tended to show that, three years before, the dog bit one Daniel Bacon on the leg, drawing blood.

The plaintiff’s evidence further tended to show that the dog demeaned himself in the same way on one or two other occasions. The defendant’s evidence tended to show, the reverse. Much evidence was given on both sides which was of such a character as to require a submission of the case to the jury.

At the close of the plaintiff’s evidence, the defendant moved for a non-suit upon the ground that there was no evidence showing that the dog was in the habit of biting horses or had been accustomed to do similar mischief. Also, that there was no evidence •of the defendant’s knowledge of the habits of the dog. And that there was no proof that the dog’s acts were the proximate cause ■of the injury. The motion was denied and exception taken. The defendant gave evidence in her own behalf. At the close of all the evidence no application was made for the direction of a verdict or non-suit.

The charge of the trial justice was a full review of the evidence and quite as favorable to the defendant in all its aspects as the proof warranted. It covered all the testimony bearing upon the defendant’s negligence, the plaintiff’s contributory negligence, including the question whether the injury was the proximate result of the conduct of the dog.

It is a familiar rule that a person who owns or has control of a dangerous animal is chargeable for the injury inflicted if he omits to take proper precautions; also, that where the defendant has knowledge of the habits of a dog as to biting people or horses, or frightening them, a cause of action rests against the owner, in the absence of contributory negligence.

The rule is illustrated by opinion of Grover, J., in Dixon v. McCoy, 39 N. Y., 400; Rider v. White, 65 id., 54; Keenan v. Gutta Percha Manf'g Co., 46 Hun, 544; 12 N. Y. State Rep., 617; Brice v. Bauer, 108 N. Y., 428; 13 N. Y. State Rep., 765.

At the close of the charge the learned counsel for the appellant excepted to certain portions, and also made some requests to charge. A careful examination of the case shows that there were no errors in the charge as a whole which could prejudice the defendant ; also, that the requests to charge 'were properly disposed of by the trial court.

It requires no argument to prove that a dog which practices jumping at horses’ noses while they are traveling is liable to inflict great injury. Horses are as much unlike as individuals; one may pay little need to the jumping of a dog, while another of a different temperament might be so frightened as to produce grave results. When a person having control of a dog indulging in those practices, with full knowledge, takes him while traveling on a public street, the risk of injuries resulting from the dog’s habits, in the nature of things, falls upon the owner.

The judgment and order must be affirmed

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


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    Mary Kiefer, Adm’rx, App’lt, v. The Grand Trunk Railway Co. of Canada, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Stay—Costs directed to be paid on opening default.
    A dismissal of the complaint on default was opened upon condition of payment of the costs. Plaintiff tendered the costs, but defendant refused to receive them and appealed from the order, which was affirmed, and thereafter an order for an open commission was granted on a motion which was opposed solely upon the merits. Held, that after what had occurred a stay of proceedings until payment of such costs could not be granted; that if defendant can now collect the money it must be by execution under § 779 of the Code.
    Appeal from an order directing the payment of moneys and. granting other relief.

      J. W. Russell, for app’lt; George F. Brownell, for resp’t.
   Corlett, J.

This action was commenced in January, 1884, by the plaintiff to recover damages for causing the death of her intestate. Issue was joined and in November, 1887, the complaint was dismissed, the plaintiff failing to appear when the case was called upon the circuit calendar.

Various delays afterwards occurred. Finally there was a change of attorneys on the part of the plaintiff and a motion was made in May, 1889, at special term to open the default, which was granted upon payment of costs included in the judgment based upon the dismissal, and ten dollars for opposing the motion. These costs were to be paid within twenty days. Before the time expired the plaintiff’s attorney tendered the costs to the defendant. It refused to accept them, manifestly for the reason that by so doing it would waive the right to appeal from the order which it had determined on. An appeal was taken to this court, where the order was affirmed. 8 N. Y. Supp., 230; 28 N. Y. State Rep., 474. Then to the court of appeals, where the appeal was dismissed.

Thereafter application was made at special term by the defendant for the following relief: For an order “requiring her to pay to the defendant, or its attorneys, the sums required to be paid by the plaintiff as costs by said order (order opening default), and offsetting against the amount of such costs the costs awarded to the plaintiff upon the appeal from said order and staying all proceedings herein on the part of the plaintiff until payment by the plaintiff of all such costs and for such other and further relief as may be just in the premises.”

This was heard and denied. No appeal was taken from the order entered upon this decision. Then the order from which this appeal was taken was made at another special term, held by another justice upon the same facts, except that on the second motion it appeared that the defendant had paid the costs of the appeals.

After the affirmance by this court of the order opening the default, the plaintiff moved for an open commission to examine witnesses, which was opposed solely upon the merits. That application was granted and the commission issued. The order now appealed from is based upon the assumption that the tender by the plaintiff within the time fixed by the order opening the default and the refusal by the defendant, including the appeals and the other acts above referred to, in no way changed the position of the parties or prevented this order vacating the one opening the default unless the costs were paid as directed in the order appealed from.

It was always competent for a party to waive a condition or a provision made in his favor or for his benefit, even though the provision is statutory or constitutional, and when once waived it is conclusive. Matter of Cooper, 93 N. Y., 507-512.

All the cases are to the same effect. Woolner v. Hill, 93 N. Y., 576; Staats v. Garrett, 21 N. Y. Wk. Dig., 39; affirmed, 98 N. Y., 630; Matter of Pet., etc., 98 N. Y.. 453 ; Titus v. Glens Falls Ins. Co., 81 id., 410; Northampton Nat’l Bank v. Kidder, 50 Sup’r Ct. (J. & S.), 246.

An election or waiver once made cannot be recalled or revoked. Fowler v. Bowery Savings Bank, 23 Abb. N. C., 133. Note to above case from pages 145 to 172 ; 23 N. Y. State Rep., 130.

In the case at bar the plaintiff, by the order opening the default, was compelled to pay the money imposed as a condition within twenty days. This payment was for the benefit of the defendant. The plaintiff offered' to pay, the defendant refused to accept, electing to pursue a different remedy, which it did. When defeated in the remedy chosen, it seeks to restore itself to the position it occupied before it waived payment. This it cannot do. The order appealed from is based on the assumption that when the defendant was defeated in the remedy it elected to take, it could obtain the full benefits of the original order. The affirmance by this court was decisive, there being no power granted by the order of affirmance to move at special term for leave to set aside the order opening the default.

The acceptance of the money and an appeal from the order would have been entirely inconsistent, and would have been in no sense concurrent. Vail v. Remsen, 7 Paige, 206 ; In re. assignment of Rater, 4. N. Y. State Rep., 845; Bennett v. Van Syckel, 18 N. Y., 481; Canary v. Knowles, 41 Hun, 452; 5 N. Y. State Rep., 13 ; Knapp v. Brown, 45 N. Y., 207; Alexander v. Alexander, 104 id., 643 ; 5 N. Y. State Rep., 499.

It is self-evident that a stay of all proceedings on the part of the plaintiff until payment of the money cannot be granted after what has occurred, and it is entirely clear that the special term cannot set aside the order opening the default in case of non-payment after such appeals.

If the defendant can now collect the money, it must be by execution in the ordinary way under § 779 of the Code of Civil Procedure

It follows that the order appealed from'must be reversed.

Order reversed, with ten dollars costs and disbursements and. motion denied, with ten dollars costs.

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


text:
    Charles W. Whitney et al., Resp’ts, v. Henry W. Richardson et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Basement—To take water from spring.
    By an instrument under seal plaintiffs’ predecessor in title, for the consideration of One dollar, let. granted and demised to the predecessor of defendants, one Johnson, the right to take and use water from his spring sufficient to run his cheese factory, “ to have the use of said water so long as the same shall be used for the purpose of running a cheese factory,” provided that he should keep the pipes in repair and the surface level. Held, that in view of the purpose for which the grant was given, it was not personal to Johnson, but enured to the benefit of the cheese factory while it continued to be used as such.
    Appeal by the defendants from a judgment entered in Brie county upon a verdict, and an order denying a motion for a new trial.

      Charles W. Sickmon, for app’lts; Charles F. Whitcher, for resp’ts.
   Corlett, J.

At the time stated in the instrument, a paper was executed of which the following is a copy:

“ This Indenture, Made this second day of December, 1873, between Abner Orr, of the town of Holland, and county of Erie, and state of Hew York, of the first part, and William A. Johnson of the town of Collins, county and state aforesaid, of the second part, Witnesseth: That for and in consideration of the sum of one dollar, paid by the party of the second part to the party of the first part, has letten and by these presents does let, grant' and demise unto the said party of the second part, the right to take and use sufficient water to run his cheese factory in Holland, from a spring on the premises of the party of the first part, situate about thirty rods east of said cheese factory, and being the same spring by which the water is now conveyed to said cheese factory; to have the use of said water so long as the same shall be used for the purpose of running a cheese factory, provided the said party of the second part shall, in digging for the purpose of laying and repairing pipes for the purpose of conveying water from said spring to said cheese factory, fill up and keep the surface level.
In witness whereof, the party of the first part, has hereunto set his hand and seal, the year and day first above mentioned.
Abner Orr. [l. s.]
“On the fifth day of December, 1873, came before me Abner Orr, to me known, and acknowledged that he executed the within instrument for the purpose therein mentioned..
“ John 0. Riley,
Notary Public for Erie County.”

The above instrument was acknowledged, and recorded in Erie county clerk’s office on the 16th day of December, 1873. Johnson died in 1877 and Orr in 1880. The plaintiffs became the owners of the land upon which the spring stood in 1884, and the defendants became the owners of the cheese factory, which continues to be operated.

In July, 1888, this action was brought to recover rent from the defendants for using the waters of the spring in their business of manufacturing cheese. Issue was joined and a trial was had before a justice and jury which resulted in a verdict of $110 in favor of the plaintiffs. A motion for a new trial was denied and the defendants appealed to this court from the judgment and order.

The sole question on this appeal is whether the right or interest created by the above instrument was simply personal, terminating with the death of Johnson, or whether it enured to the benefit of the cheese factory while it continued to be used as such. The trial court held that it terminated with the life of Johnson, and that after that the plaintiffs were entitled to the value of the use of the water taken for cheese manufacturing purposes. Hpon that ground the plaintiff recovered.

It appears from the instrument and case that water from the spring had been used for the purposes of this factory before the writing was executed.

The word “ indenture,” which the instrument is called, imports in its broadest sense a conveyance. The term grant ” is defined as the passing of real estate from one to another. While the instrument in this case was in form executed to Johnson, yet it provides in terms for the use of such water li so long as the same shall be used for the purpose of running a cheese factory” on complying with certain conditions therein mentioned.

First R. S., 748, § 1, is as follows: “ The term ' heirs ’ or other words of inheritance shall not be requisite to create or convey an estate in fee, and every grant or devise of real estate or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator unless an intent to pass a less estate or interest shall appear by express terms or be necessarily implied in the terms of such grant.”

In Nellis v. Munson et al., 108 N. Y., 453; 13 N. Y. State Rep., 825, it was adjudged that an easement to carry water across the lands of another for the benefit of the dominant estate is an interest in fee or of the freehold, within the meaning of the statute. In that case the instrument was not acknowledged or recorded. It was, therefore, held to be void as against the purchaser. In the case at bar, the instrument was both acknowledged and recorded.

The omission of the words heirs or assigns ” did not limit the extent of the grant. Nicoll v. N. Y. & E. R. R. Co., 12 N. Y., 121; Cole v. Lake Co., 54 N. H., 242, 243, 278 ; Matter of Kirk v. Richardson, 82 Hun, 434, 435.

A cheese factory in a neighborhood or locality may be of great value and convenience to the surrounding country. The purpose of making the instrument was manifestly to insure the continued use of the factory. The consideration named in the instrument was entirely immaterial. Bliss v. Greeley, 45 N. Y., 671; Johnstown Cheese Manuf. Co. v. Veghte, 69 id., 16.

The special term, in denying the motion for a new trial, construed the instrument as personal to Johnson. A careful reading shows no such limitation. It was manifestly intended to enable the factory to be kept in use. The fact that Johnson was then its owner caused the instrument to be drawn to him. The words heirs or assigns ” were not used, nor was it necessary that they should have been. The value of the cheese factory might be practically destroyed if the right to use the water from the spring should be confined to the lifetime of the owner, which might be of Short duration.

The whole instrument clearly implies that its central purpose ■was to secure water for the use of the factory upon the conditions being complied with. There were no words of limitation confining such use to the lifetime of Johnson. It is not alleged or claimed that any of the conditions contained in the instrument were not fully performed and kept by Johnson and his successors. The form of the indenture shows that it never entered into the contemplation of either party that rent should accrue or be collected.

Importance was attached by the special term to the words indidicating that the instrument was a lease.

In Genet v. D. & H.C. Co., 122 N. Y., 505; 34 N. Y. State Rep., 246, it was held that a contract which stated that the plaintiff and her husband, as parties of the first part, for certain considerations specified, “ hath leased and doth hereby lease to defendant, certain lands,” vested an estate in fee in the coal, etc., which shows that calling the instrument a lease does not limit its construction.

¡Numerous cases have been decided upon a great variety of facts which would throw no particular light upon the questions involved in this controversy. The learned justice at special term states, in substance, that the defendant’s contention would be correct if the instrument could be construed as one executed for the benefit of the factory. But he limits its construction to the use of Johnson personally. Having reference to the terms of the grant and circumstances surrounding the making of the instrument, including the conditions existing at the time, a construction should be adopted, if the language used will admit of it, which secures the benefit of the water for the manufacture of cheese so long as the building is used for that purpose.

It is a fundamental principle of construction that when the terms of the grant are doubtful, they will be taken most strongly against the grantor. Kilmer v. Wilson, 49 Barb., 86-88; Herman v. Roberts, 119 N. Y., 37; 28 N. Y. State Rep., 843.

Coleman v. Beach, 97 N. Y., 545, cited by the learned justice at special term, is not in conflict with this rule. The learned judge delivering the opinion in that case says on page 553: “ The rule governing controversies between grantor and grantee, by which the language of the conveyance is to be taken most strongly against the grantor, has no application when the dispute occurs between parties claiming under the same conveyance, and who are entitled to- the benefit of the same rule of construction.”

In the case at bar, the grantor invokes one rule of construction which would benefit him, and the grantee a different one which would secure a different result. In this case, the exact question is whether the grantee shall have the benefit of the general rule of construction. The case cited at special term .has no application.

The learned counsel for the respondent cited Jackson v. Van Hoesen, 4 Cow., 325, in support of his position. It has no application, as that case was decided before the Revised Statutes, when the words “ heirs and assigns ” were material.

It follows that the judgment and order must be reversed and a new trial granted.

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

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


text:
    Frederick Zimmer, Resp’t, v. Louis Black, Joseph Meyer and Benjamin Meyer, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Lease—Damase to fbemises by fire—Removal.
    Where leased premises are damaged by fire so as to be unfit for occupancy, the tenant should have a reasonable time to remove.
    2. Same.
    In an action for rent of leased premises the defense was that on the 25th of July the premises were so damaged by fire as to be unfit for occupation, and that defendants removed therefrom with due diligence on the 2d of August. It appeared that defendants’ goods were insured, and that it was important that they should not move until they did on account of such insurance. Held, that the case should have been submitted to the jury on the questions as to the condition of the premises and defendants’ diligence in removing, and that a direction of a verdict for plaintiff was error.
    Appeal by the defendants from a judgment of the county court of Monroe county, on appeal from the municipal court of the city of Rochester in favor of the plaintiff, and from an order denying a new trial.

      C. A. Keeler, for app’lts; H. B. Hallock, for resp’t.
   Corlett, J.

On the 28tli day of December, 1888, the plaintiff executed a lease to the defendants of that part of the Zimmer block on Mill street, in the city of Rochester, known as store No. 70, with the basement and two floors above, the lessees to take possession the first day of February, 1889, the lease to continue for three years, ending on the 31st of March, 1892. The rent was $700 a year, payable monthly in advance.

On the 25th day of July, 1889, a fire occurred which rendered the leased premises untenantable, and the defendants left them on the 2d day of August following.

This action was brought to recover the rent for the month of August, 1889. The defense was that before the 1st day of August the premises were so damaged by fire and water as to become untenantable and unfit for occupation, and that the defendants removed therefrom with due diligence, which removal occurred on the 2nd day of August, and that they surrendered up the premises to the plaintiff and were thus relieved from the payment of further rent

Section 1 of chap. 345 of the Laws of 1860 is as follows: “The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises and of the land so leased or occupied.

The action was brought in' the municipal court of the city of Rochester, and in August, 1889, was tried before the court and judgment rendered in favor of the plaintiff for the August rent

An appeal was taken to the county court of Monroe county for a new trial, which was had in April, 1890, before that court and a jury. At the close of the evidence the court directed a verdict for the plaintiff. A motion was made by the defendants for a new trial, which was denied. The defendants appealed to this court from the judgment entered upon the verdict and the order.

On the 3d day of August the defendants paid in full to the plaintiff the rent for July, and tendered it for the first three days of August, which the plaintiff refused to receive.

The defendants’ stock in trade was insured, on account of which the insurance companies paid thirty-three and one-third per cent damages. The evidence tended to show that it was important that the defendants should not move on account of the insurance until the time they did. •

On the 3d day of August the defendants served notice on the plaintiff of a surrender of the premises.

At the close of the evidence in the county court the defendants asked to go to the jury upon the following questions:

First. Whether at the time the premises were vacated they were in an untenantable condition.
Second. Whether on July 25th the premises were so injured by the elements or from any other cause as to be untenantable without fault of the defendants.
Third. Whether the defendants exercised reasonable diligence in removing from the premises after the fire.

The motion was denied and a verdict directed in favor of the plaintiff for the rent of the month of August, 1889. Exceptions were taken by the defendants.

In Vann et al. v. Rouse et al., 94 N. Y., 401, it was held that chapter 345 of the Laws of 1860 secured to a tenant the benefit therein expressed in the absence of an express written agreement indicating an intent to waive it.

In Bassett v. Dean, 34 Hun, 250, decided in the first department, in October, 1884, it was held that under the above chapter, when the premises become untenantable in consequence of fire, the tenant is allowed a reasonable time within which to remove his property from the premises occupied by him; and what is a reasonable time should be submitted to the jury.

A like decision was made by the same court in Wallace v. Coe, in January, 1888. 13 N. Y. State Rep., 546.

The above' cases are decisive of the one at bar, unless overruled.

Johnson v. Oppenheim, 55 N. Y., 280, has no application. There the lessees occupied the premises after the injury from June, 1869, until the 30th of September following. The court held that the tenant had retained possession so long that to relieve him from payment would secure him the benefit of the lease and at the same time allow him to repudiate its obligations.

Pearson v. Gillotte, 15 N. Y. State Rep., 395, decided in the city court of New York, was based on that case.

In Smith v. Kerr, 108 N. Y., 31; 13 N. Y. State Rep., 115, the point decided was that when the leased premises are destroyed by fire, no obligation rests upon either landlord or tenant to rebuild in the absence of express covenants. That in such case the tenant has an option either to declare the lease at an end and surrender possession, or continue to the expiration of the term, and that where a tenant continues to occupy he is liable. Also, that a parol agreement to change the amount of rent, was not, upon the facts appearing, available.

In that case the store was burned on the 5th day of September, 1880. After the fire the plaintiff erected a brick building. While this was being done it was verbally agreed that after the new building was completed the rent should be fifty dollars a month instead of twenty-five dollars. The defendant did not surrender the old lease to the plaintiff. The defendant having refused to pay the fifty dollars a month, summary proceedings were resorted to with success. On appeal this court held that the verbal agreement could not be enforced, and reversed the adjudication below. 33 Hun, 567. The questions involved in the case at bar were not before the court or determined.

It is obvious that when by disaster the premises become unfit for occupancy, the tenant should have a reasonable time to remove. This was decided in the cases first above cited, and the soundness of those decisions has never been questioned.

The case should have been submitted to the jury as requested by the defendants.

It follows that the judgment should be reversed, and a new trial granted.

Judgment and order reversed and new trial granted in county court, with costs to abide event.

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


text:
    Reuben A. Adams, Resp’t, v. Nancy Ann Hilliard et al., App’lts.

      (Supreme Court, General Term. Fifth Department,

      Filed April 16, 1891.)

    1. Attachment—Contract—Code Civ. Pro., § 1843.
    A claim of a physician for professional services rendered to a testatrix is one arising upon contract within the meaning of § 1843 of the Code.
    . 2. Same—Affidavits.
    Affidavits showing a claim against a testatrix arising upon contract; that she left no personal property; that her heirs and next of kin reside without the state, giving the actual residences of each, and stating the source of information to he affidavits and the judgment roll on file in the clerk’s office in an action of partition of testatrix’ real estate, and from correspondence with such heirs, and that the sheriff, after due diligence, has not been able to make service within the state, together with the certificate of the sheriff to that effect, are sufficient to sustain an action against such non-resident heirs.
    Appeal by the defendants from an order of the Monroe special term, denying a motion to vacate an attachment.

      William B. Hale, for app’lts; W. Martin Jones, for resp’t.
   Corlett, J.

The complaint alleges, in substance, that Catherine J. McKale died on the 9th day of August, 1884, in the city of Eochester, leaving a will by which W. Martin Jones was appointed executor. The material parts of the will are as follows:

“First. After all my lawful debts are paid and discharged, I give and bequeath unto my sister, Nancy J. McKale, formerly of Hull, Ontario, if living at the time of my decease, and to her heirs and assigns forever, the sum of three hundred dollars, provided, however, that if neither my said sister or her lawful representatives shall be found within five years from my decease, then I give the said sum of three hundred dollars to my sister, Mary Butler, widow of Patsy Butler, of Canada.
“ Second. I give, devise and bequeath unto the child of my brother, John McKale, formerly of Hull, Ontario, the sum of $300; provided, however, that if said child be not living at the time of my decease, or if not found in five years thereafter, then I give said sum to my sister, Mary Butler.
Third. I give, devise and bequeath unto my said sister, Mary Butler, all the rest, residue and remainder of my estate, both real and personal, of which I may die seized or possessed, or to "which I may in any manner be entitled at the time of my decease.
Fourth. I give unto my executor, hereinafter named, full power and authority to contract for the sale, and to sell any or all real estate of which I may die seized or possessed, giving full and perfect title thereto.”

The deceased at the time of her death left some land in the city of Eochester, being lots 23 and 24, having a front of about 234 feet on the west side of South Union street, extending back 108 feet. The testatrix left her surviving the defendants in this action, heirs-at-law and next of kin.

The complaint also alleges that all the defendants reside either in Canada or Michigan, except the defendant, James A. McKale.

The plaintiff was a physician and surgeon, engaged in the practice of his profession in the city of Eochester in 1883 and 1884. In the former year he rendered medical services for the testatrix, Catherine J. McKale, of the value of forty-three dollars, and in the year 1884, he and his partner rendered services of a like character of the value of $179, amounting in all to $222, with interest, of which the plaintiff became the sole owner. The plaintiff presented the above claims for services to the executor, by whom they were allowed, but never paid.

The land above mentioned was sold in an action of partition. The proceeds of the sale are the only assets or funds available to the payment of the plaintiff’s demand. This action was brought to recover for those services.

In November, 1890, the plaintiff obtained an attachment from a justice of this court at chambers against the non-resident defendants. The application was based upon the verified complaint (which includes a copy of the will), the affidavit of Eeuben Adams, sworn to on the 29th day of November, 1890, and the affidavit of the plaintiff’s attorney, W. Martin Jones, verified on the same day. The formal parts of the affidavit of Adams recite, in substance, the allegations contained in the complaint, and that the testatrix left no personal property out of which the plaintiff’s debt could be collected.

The affidavit then states “ that all said legatees, heirs and next' of kin reside without the state of New York except the defendant, James A. McKale ; that there are no offsets against said claim, as deponent is informed and verily believes, and he is j ustly entitled to recover the said sum of money so first above specified, with interest, as aforesaid, over and above all counterclaims, discounts and set-offs known to the plaintiff; that plaintiff is informed and believes that all of the defendants except the said James A. McKale have resided out of the state of Now York at all times and at places as follows :

Nancy Ann Hilliard and Nancy Jane Butler reside at Cadilac in the state of Michigan; the defendant, Bartholomew McKale, and Margaret McKale, his wife, reside at Avoca, in the province of Quebec; that the defendant, Anthony McKale, and Margaret McKale, his wife, reside at Cassabasaway, in the province of Quebec ; that the defendant, Anthony Butler, and Anna Butler, his wife, reside at Ottawa, Ontario; the defendants, John Butler and Martha Butler, his wife, reside at Rochesterville, in the province of Ontario; that the defendant, Mary Elizabeth Burns, resides at Renfrew, in the province of Ontario; and that the residence and whereabouts of the defendants, Bridget McKale and Margaret McKale, are unknown to plaintiff, and the same cannot be ascertained after due diligence on the part of the plaintiff; that they were sisters of the half blood of the said Catharine J. McKale, and at one time resided in the dominion of Canada, but that plaintiff, after due diligence, has been unable to ascertain their present place of residence; that plaintiff’s source of information concerning the residence of said defendants is obtained from affidavits on file in the office of the clerk of the county of Monroe, and in papers comprising the judgment roll in the action for partition referred to in plaintiff’s complaint, wherein Nancy Ann Hilliard was plaintiff and the other defendants herein were defendants.”

The affidavit of the attorney on the subject of residence is as follows:

“That he is personally acquainted with one of the defendants in this action, James A. McKale, who resides in the city of New York; that he has met the husband of the defendant, Hilliard, but has never met any of the other defendants in this action; that he has corresponded with the defendant Hilliard and several of the other defendants in the action, and that from such correspondence he is satisfied that they are all residents either of the state of Michigan or of the dominion of Canada; that he has placed the summons in this action in the hands of the sheriff of Monroe county for service, and that he has made due and diligent effort to secure such service upon the defendants in this state; that after placing such summons in the hands of the sheriff of Monroe county the sheriff, after due and diligent effort, was unable to make such service within the county of Monroe or state of New York, as appears by his certificate hereto annexed.”

The certificate of the sheriff above referred to is to the effect that the defendants cannot be found in the county of Monroe, and that, so far as the sheriff could learn, they were not residents of the state.

Application was made in December, 1890, to vacate - the attachment at special term, in Rochester, based on the same papers on which it was granted. This was denied, and the defendants appealed to this court.

Applying to-the papers and affidavits in this case the doctrine of construction adopted by this court in Jaffray et al. v. Hast et al., 32 N. Y. State Rep., 250, and Leiser v. Rosman, id., 739, they were sufficient to authorize the issuing of the attachment. To the same effect are Pierson v. Freeman, 77 N. Y., 589 ; James v. Richardson, 39 Hun, 399 ; and Buell et al. v. Van Camp, 119 N. Y., 160; 28 N. Y. State Rep., 947.

The learned counsel for the appellants insists that the cause of action alleged in the complaint did not arise upon a contract, express or implied, under § 1843 of the Code of Civil Procedure, and cites, in support of his contention, Wilson v. Harvey, 52 How. Pr., 126, which, so far as material here, simply decided that the law does not imply a promise from a child to pay for necessaries furnished without his request to an indigent parent, and that such a cause of action did not arise upon contract.

He also cites. McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y., 176. That action was to recover a penalty created by statute. But this action arose upon a contract, and is for the recovery of money.

An implied contract is created by law to establish justice between parties. It does not require mutual consent, but may bind a party against his will. Bishop on Contracts, §§ 28, 184, 204, 205, 214 and 237; United States v. Graff, 67 Barb., 304.

The order appealed from must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

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


author: Dwight, P. J.

text:
    Mary Birmingham, by Guardian, Pl’ff, v. The Rochester City & Brighton R. R. Co., Deft.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Carriers—Liability fob injuries to passengers.
    A carrier of passengers contracts not only for h’s own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted.
    5S. Same.
    Plaintiff, while a passenger on one of defendant’s cars, was injured by the fall of a quantity of pg-iron from an iron trough used to balance a lift bridge constructed and owned by the state, and forming part of the highway traversed by defendant’s road. Held, tint by its use of 1 he bridge defendant made it a part of the superstructure of its road, and was as ' much responsible for its safe condition as for that of any portion of its track.

      Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after a nonsuit granted at the circuit.

      E. Van Voorhis, for pl’ff; A. Benedict, for def’t.
   Dwight, P. J.

The plaintiff, a young girl of fourteen years of age, was a passenger by one of the cars of the defendant, on its street railway in the city of Rochester. The route pursued by the car was along West Main street, crossing the Erie canal by a “lift bridge” constructed and owned by the state, and which ‘ formed a part of the highway. The bridge was raised and lowered by hydraulic machinery, but it seems as originally constructed it was imperfectly balanced, and that counterweights had been added in the form of iron troughs loaded with pig-iron and suspended at the top of the bridge, some eighteen feet from the floor and directly above the carriage-way and railroad track. The mode of suspension is not very clearly described in the record, but it is sufficient to say that it depended for its security upon the strength of the welding of certain iron “stirrups” through which the troughs passed. On the occasion of the passage of the car in which the plaintiff was seated the stirrup supporting the end of one of these troughs gave way, and the end of the trough fell from its horizontal position; its entire load of loose pigs of iron slid out and were precipitated upon and through the roof of the car, and one or more of them struck the plaintiff on the head and shoulder, inflicting the serious injuries of which she complains.

The only question in the case is whether the defendant is chargeable with these results of the imperfect and unsafe construction of the bridge. The defendant’s contention to the contrary is based upon the fact that the bridge was not one of its own structures, being neither built nor controlled by it; that it had no authority to reconstruct or repair it, and that even if it had such authority the defect from which the accident resulted was one which would not have been disclosed upon reasonable inspection.

We think this contention cannot be maintained, but that it is opposed to elementary principles which determine the liability of common carriers of passengers. The fact that the structure was not built or controlled by the defendant is immaterial. It was adopted and employed by the defendant as one of the appliances by means of which its business of transporting passengers was carried on. Such being the case, the defendant was chargeable with all the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself, or owned and controlled by it. This conclusion results from the nature of the contract between the carrier and the passenger. That contract is to carry safely, barring accidents against which the utmost human skill and foresight are powerless to provide. This contract includes not merely an assurance that the utmost skill and foresight shall be employed to secure the safety of the passenger during the act of transportation, but a guaranty that the same degree of skill and foresight has been employed in the selection and construction of all the machinery and appliances used for the purpose of such transportation. In other words, the carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted. Palmer v. D. & H. Canal Co., 120 N. Y., 170; 30 N. Y. State Rep., 817, and the cases cited; Carroll v. Stat. Island Co., 58 N. Y., 126, 138; Hegeman v. Western R. R. Cor., 13 id., 9.

These principles would apply to the case at bar even if it were to be conceded that the imperfect welding of the iron stirrup were the only defect in the construction of the bridge of which the plaintiff could complain; because, even though that defect was not discoverable after the bridge was erected and in operation, it is in evidence, and not questioned by the defendant, that the defect in welding was easily discoverable by the maker of the stirrup on the application of a well known test. But the concession supposed cannot be required of the plaintiff. The whole question of negligence in the application of counterweights to the bridge; whether the exercise of even ordinary prudence was evinced in the suspension of loose masses of iron in troughs, over the heads of passengers liable to be precipitated upon them whenever a defect should develop itself in the means of suspension, was clearly a question for the jury. This mode, of construction was open and apparent to ordinary observation, and against the dangers incident to it, whatever they were, the defendant was bound by its contract to protect its passengers.

By its use of the bridge the defendant made it a part of the superstructure of its road, and was as much responsible for its safe condition as for that of any portion of its track. So it has always been held in respect to railroads employing leased lines, or the right of trackage on the lines of other roads. It is to the company contracting for his transportation, and not the company upon whose line the cars of the former are run, to which the passenger may look for compensation for an injury resulting from a defective road. Phil. & Read. Co. v. Anderson, 94 Penn., 351; Murch v. Concord R. R. Cor., 29 N. H., 9; John v. Bacon, L. R., 5 C. P., 437.

In this case the defendant, under what arrangement does not appear, acquired or assumed the privilege of laying its track over a bridge belonging to the state. It was no less responsible to its passengers for the safe condition of the structure than if it had been'of its own construction. We think the question of the negligence, if any, for which the defendant was responsible, was a question for the jury, and that the motion for a non-suit was improperly granted.

The plaintiff’s exception to that ruling should be allowed and a new trial granted.

Motion for a new trial granted, with costs to abide the event.

Macomber and Corbett, JJ., concur.


author: Dwight, P.J.

text:
    Anna B. Hall, Resp’t, v. Edward B. Germain, Individually and as Ex’r of James T. Germain, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Civil damage act—Owner of building.
    An owner of a building who entrusts its renting to another without restriction is chargeable with the knowledge of his agent, and where the premises are used for the sale of liquor will be held to have permitted such use and to be liable under the civil damage act.
    2 Same—Evidence.
    Evidence to the effect that at the time of the execution of the lease it. was understood that the lessee was not to sell liquor on the premises is immaterial in an action under the civil damage act, where it is undisputed that the agent had knowledge that the lessee and his successor did in fact carry on such business on the premises for years while paying him the-rent therefor.
    3. Same—Damages.
    In such action the jury has a right to consult the annuity tables in de termining the probable duration of the joint lives of plaintiff and her husband.
    Appeal from a judgment entered on the verdict of a jury at. the Monroe circuit, October, 1889.

      J. A. Stull, or app’lt; J. D. Decker, for resp’t.
   Dwight, P.J.

The action was under the civil damage act (Laws of 1873, chap. 646). It was brought by the plaintiff as the widow of a person whose death was alleged to have been caused by his own intoxication, produced in whole or in part by liquor sold to him by the defendant McGovern, on premises rented to him by the defendant Edward B. Germain, as the agent and manager of the owner James T. Germain. The three persons named were originally made defendants in the action, but James T. Germain has died since this appeal was taken and Edward B. Germain, as his executor, has been substituted for him as defendant, and the defendant McGovern has made default.

There was no motion for a new trial below, and the evidence-bearing upon the material questions of fact was either conflicting or not contradicted by the defendants; we are, therefore, confined, on this review, to the consideration of exceptions taken by the defendants on the trial.

The two Germains were brothers. James lived in Dutchess county, but owned the premises in Brockport, Monroe county, in which the liquor was found to have been sold. Edward lived in Brockport and had the entire management and control of his brother’s property there, including the premises mentioned. Ten years or more before this cause of action arose he had rented the premises to one Guelph, by a written lease which made no mention of the use to which it was to be put. Guelph occupied it four or five years as a saloon and sold out the business to McGovern, who-continued it at the same place five or six years more, with the full knowledge and consent of Edward Germain, to whom he paid his rent.

There was no evidence that James Germain personally knew,, indeed the learned trial judge instructed the jury that it must be found as a fact that he did not have personal knowledge, that the premises in question were occupied as a saloon; but the case as to him was submitted to the jury upon the question of fact whether he gave unlimited authority to his brother to rent and manage the property as he saw fit and without restriction, as to the use for which it should be occupied; and with the instruction in effect, that, if such was the case, then James was responsible for the use for which Edward permitted the property to be occupied, and was chargeable with Edward’s knowledge of the use for which it was occupied, and was liable jointly and severally with him in this action.

The question of fact involved, if there was one, was properly decided in favor of the plaintiff. There was really no question but that the owner of the property left it with his brother to manage it as if it were his own, without restriction as to the use for which it should be rented, or inquiry as to the use for which it was rented, during the ten years or more while it was in fact rented for a saloon. The owner himself, who was a witness on the trial, characterized the relation of the two brothers to the property in these words: “ The truth of the matter is I had such confidence in my brother’s management that I let him take the hotel property (which embraced the saloon) and the farm down, north, and manage them according to his best judgment.”

Upon this state of facts we think the trial court correctly in: structed the jury as to the law of the case. A principal is always answerable, civilly, for the acts of the agent done within the scope of the'agency. So too he is chargeable with all the knowledge possessed by the agent of facts involved in the trans-' action of the business with which he is intrusted. Myers v. Mut. Life Ins. Co., 99 N. Y., 1. This rule applies even in the case of fraud committed by the agent. Bank of U. S. v. Davis, 2 Hill, 452. Of course the principal is not answerable criminally for the criminal acts of the agent unless he is accessory thereto, and that requires personal guilty knowledge on his part. It may also be conceded that the latter rule applies to the case of a penalty imposed by statute for a violation of law and recoverable in a quasi criminal action.

But the statute under which this action arose is not, in any sense, a penal statute. It imposes no penalty; it contemplates no violation of law. It simply attaches to a particular traffic a particular liability. The traffic may be perfectly lawful; it may even be carried qn under the express license and permission of the state; the statute in question simply charges it with a liability for its own actual consequences, if to the injury of others. That liability is not therefore a penalty, but a burden voluntarily assumed by every person who either engages in the traffic in question, or furnishes the place of business in which it shall be carried on. That burden is the liability to respond in damages to any person sustaining certain actual pecuniary loss, as a consequence of the traffic in a particular instance. The statute, then, is seen to be not penal but remedial, and to be so construed as to give effect to the remedy intended to be supplied.

That intention would be easily defeated if the owner of the property available for this business might put it into the hands of an irresponsible agent, with carte blanche to rent it as the latter saw fit, for the benefit of the former, and yet be relieved from the burden which the law casts upon the owner if the property be used for the purpose specified in the statute.

We think that upon the general doctrine of the law of principal and agent, and especially in view of the character and object of the statute under consideration, the knowledge of the agent in this case must be held to be the knowledge of the principal; in other words, that in a case like this the owner must be held to have himself permitted, within the meaning of the statute, the occupation of the building or premises for the purpose for which he has permitted his agent to rent it.

In respect to the defendant Edward Germain there can, we suppose, be no serious question but that he was, within the spirit as well as the letter of the statute, “ a person * * * renting or permitting the occupation of a building or premises, having knowledge that intoxicating liquors were to be sold therein.”

The evidence offered to the effect that, at the time of the execution of the lease to Guelph, it was understood that he was not to sell liquor on the premises, was immaterial in view of the undisputed fact that Edward Germain knew that both Guelph and McGovern did in fact carry on the business of selling liquor on the premises, each for a period of from four to six years, and paid him the rent therefor.

The jury had a right to consult the annuity tables in determining the probable duration of the joint lives of the plaintiff and her husband; and the instruction of the court in that respect was entirely correct. The expectancy of the joint lives of two persons is, necessarily, the same as that of the shortest lived of the two; in this case that of the husband, since he was several years older than his wife.

We find no exception in the case which vitiates the verdict of the jury, and that verdict determines all material facts in issue.

The judgment must be affirmed.

Macomber and Corlett, JJ., concur.