text:
    Frank Harley, Resp’t, v. Buffalo Car Manufacturing Company, App’lt.

      (Court of Appeals,

      Filed April 10, 1894)

    1. Master and servant—Appliances.
    The master cannot be made liable for an injury to one of his servants if, in selecting the particular appliance, where several are in use, he takes the one which, according to his judgment, is the best and most suitable, guided by his experience and observation and those of the skilled men in his employment.
    2. Same—Co servant.
    Where the master keeps constantly on hand for use by his servants a sufficient supply of proper appliances, the failure to use them is the negligence of a co-servant for which the master is not liable.
    3. Same—Defect.
    He is not liable for imperfection in manufacture or material, where it is not visible to ordinary observation.
    4. Evidence—Opinion.
    The opinion of skilled and experienced experts as to the safety of a belt fastener is incompetent.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 4, 1892, whitih affirmed a judgment in favor of plaintiff entered upon a verdict.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Adelbert Moot, for app’lt; George Wing, for resp’t

       Reversing 48 St. Rep. 58.

   Earl, J.

This action was brought by the plaintiff to recover damages against the defendant for a serious injury received by him from the breaking of a belt used to move machinery in the defendant’s shop at the city of Buffalo.

The principles of law applicable to such a case as this have exposition in many decisions of this court. It is sufficient to cite the following: Devlin v. Smith, 89 N. Y. 470; Burke v. Witherbee, 98 id. 562 ; Sweeney v. Berlin & J. Envelope Co., 101 id. 520: Bajus v. S., B. & N. Y. R. R. Co., 103 id. 312 ; 3 St. Rep. 96; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426; Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621; Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; 23 St. Rep. 618; Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957; Cosulich v. Standard Oil Co., 122 N. Y. 113; 33 St. Rep. 287; Hart v. Naumburg, 123 N. Y. 641; 33 St. Rep. 607; Kern v. De Castro, 125 N. Y. 50; 34 St. Rep. 363; Carlson v. Phenix B. Co., 132 N. Y. 273; 43 St. Rep. 942.

The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the master liable, not a mere error of judgment.

Here the belt was fastened at one of its splices with what was called the Buffalo belt fastener, and while the machinery was running the fastener gave way and the belt parted and caused the injury to the plaintiff. It was shown upon the trial that there were several kinds of belt fasteners in use ; that all of them were liable to break; that no one could foresee when they would break, and that they generally broke under some unusual strain which might come from a variety of causes. The witnesses differ as to which of the fasteners in use was the safest and best, some of them giving preference to one kind and some to another. The evidence shows that one kind would be better on some belts and another kind better on other belts, the fact of safety and utility depending upon the machinery upon which the fastener is used, the place where it is used, the work which is to be done, and the strain to which it is to' be subjected. A number of witnesses who apparently had had the greatest experience with the Buffalo fastener gave it the preference for safety and efficiency. It was a patented article and had been manufactured, sold and used for several years before this accident. It was manufactured in Buffalo, and one of the persons engaged in its manufacture testified that these fasteners were extensively sold all over this country and in Canada, and that some of them were exported; that the sales of them had constantly increased until they reached in value $40,000 a year, and thus'it is probable that several hundred thousand of them were sold and put to use every year. The skilled workmen in the employment of the defendant who had used them for several years testified that they were convenient, useful, efficient and safe. It does not appear that they had been less safe than any other fastener in use, nor does it appear that any serious accident had ever before happened from the breaking of any belt fastener.

Hnder such circumstances how can it be said that the defendant violated any duty it owed to the plaintiff ? It was impossible from the evidence to determine whether these fasteners were or were not the best in use for such "a belt and machinery as the defendant had at the time and place of the accident. Suppose a master needing fasteners in his shop makes inquiry among men of skill and experience as to the best kind of fasteners to use, and he is informed by some that one kind is the best, and, by others that another kind is the best, and so on, and he finally makes a selection, using his best judgment; and suppose it should turn •out that it was not the best, could he, under such circumstances, be held liable for an injury received by a person in his service from the parting of a belt on account of the insufficiency of the fastener under any particular strain to which the belt had been subjected? But we may go one step further. Suppose, under such circumstances, he purchased fasteners for use in his shop, which, according to the judgment of his skilled workmen were found to be useful, convenient and safe, and the very best in use, can he then be charged with negligence for continuing to use them and be made liable to one who is accidently injured by the parting of a belt? Suppose, under the circumstances which exist here, the defendant had adopted one of the other fasteners for this particular belt and an accident had happened from its parting, there would have been substantially the same evidence for the jury and the same claim could have been made which is now made, that there was a question of fact for the jury as to its negligence in making the selection. This judgment cannot be affirmed without subjecting the master in such a case as this to the risk of liability for injuries from the parting of a belt moving machinery in his shop, whatever fastener he may use, because if he uses one kind, according to the evidence in this case, it is easy to find persons who will testify that from their experience and observation some other kind was better.

It must always be true that where several appliances are in use, each of which is regarded by men of skill and experience as safe and proper, the master cannot be made liable for an injury to one of his servants, if in selecting the particular appliance he takes what, according to his judgment, is the best or most suitable, guided by his experience and observation and those of the skilled men in his employment.

Upon the evidence in this case, it cannot even be determined that the managers of the defendant erred in their judgment in the selection of this kind of fastener. But if there was an error in judgment, it was not such as to constitute that degree of negligence and want of prudence which, under the rules of law above cited, can impose liability for such an accident as this.

If it should be claimed that, in splicing the belt, a sufficient number of these fasteners was not used to make it safe and secure, it may be answered that the proof does not show that there was not a sufficient number; and even if there was not, that circumstance would not impose liability upon the defendant in this action, because it furnished and kept on hand in its shop a large quantity of the fasteners for use by its employees, and when a belt parted, as they were liable to frequently, they were bound in the exercise of their skill and judgment, to splice it and to use a sufficient number of fasteners for that purpose; and if they did not, then the negligence was that of a co-employee, and on that account the defendant could not be held liable.

If there was any weakness in the particular fasteners used in this belt, from imperfect manufacture or imperfect material, such imperfection not being visible to ordinary observation, the defendant could not be made liable on that account, as they were the same kind of fasteners which they had used for years with entire success and safety and which they had purchased from the manufacturers engaged extensively in their production and sale.

Upon the trial of the action the main issue to be determined by the jury was whether the Buffalo belt fastener was suitable and safe for fastening the belt in question, and the plaintiff was permitted, against the objection of the defendant’s counsel, to ask several of his witnesses their opinion as to their safety and fitness. We think these questions were objectionable. A sample of this belt fastener was produced before the jury, and also a piece of belt showing how the fastener was used. Its size and mode of use was apparent to the jury. It was competent for the plaintiff to prove the strain to which it would be subjected, its liability to break and all the experiences of persons who had used it; and thus all the facts could be placed before the jury from which they could determine whether or not it was a suitable and safe belt fastener. It cannot be proper to have the issue determined by the opinions of experts, however skilled and experienced they may be. The facts should be placed before th& jury and they should be left to determine whether the belt fastener was safe or otherwise. Van Wycklen v. City of Brooklyn, 118 N. Y. 424 ; 29 St. Rep. 790; Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455; 40 St. Rep. 454; Schneider v. Second Avenue R. R. Co., 133 N. Y. 583; 44 St. Rep. 680.

We are, therefore, of opinion that this judgment should be reversed and a new trial granted, costs to abide event.

All concur (Andrews, Ch. J., on exceptions to evidence), except Bartlett, J., dissenting.

Judgment reversed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The People, Resp’t, v. Charles F. Underhill, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    Forgery—Section 521 op Penal Code.
    To sustain a conviction for forgery under the provision of § 521 of the Penal Code, it must appear that the writing or instrument was forged, or was altered after its execution.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made January 18, 1894, which affirmed a judgment of the court of oyer and terminer of Monroe county entered upon a verdict convicting defendant of the crime of forgery in the third degree, and also affirmed an order denying a motion for a new trial and in arrest of judgement.
    The facts, so far as material, are stated in the opinion.

      George Raines, for app’lt; Howard H. Widener, for resp’t.

      Reversing 58 St. Rep. 220.

   O’Brien, J.

The defendant was convicted of the crime of forgery in the third degree, upon an indictment containing four counts, charging, in various forms, the forging, altering and uttering by the defendant, when president of the Flour City Life Association, an insurance corporation or association on the co-operative or assessment plan, of a writing belonging to and pertaining to the business of the association, with intent to defraud. There is little if any dispute in regard to the main facts of the transaction upon which the indictment was framed. It appears by the record that the defendant was the president of the insurance association above named, and as such one of the principal managing officers. The main business office of the corporation was at Rochester. In the year 1889 one, Philip Wareham, a resident of the state of Michigan, applied for membership in the association, was accepted, and two certificates issued to him upon the terms and for the purpose of securing the benefits and indemnity provided by the charter and by-laws of the association. In November 1890, he died, and his son, Hamilton Wareham, the beneficiary named in the certificate, presented to the corporation proofs of death, and claimed $2,000 as the sum secured to him by the insurance. It was claimed that the certificate was procured by the beneficiary from the association by fraud, and the loss was not recognized by the company as one for which it was liable. In the early part of December, 1890, the defendant and another person, employed to adjust losses, went to Michigan, and settled the claim for $400. The beneficiary signed and sealed a written instrument, bearing date December 8, by which the claim was compromised and released. The instrument recites the issuing of the certificate, the amount apparently due thereon, the fact that a defense existed to the same on the part of the company, and the release of the claim upon payment of $1,400. The actual settlement with the beneficiary was for $400 and he was paid only that sum. The evidence tended to show that the defendant drew $1,400 from the treasury of the corporation, paid $400 to the beneficiary in settlement of the claim and that either he or his associate retained the balance of $1,000 and fraudulently appropriated the same. The proof also tended to show that the beneficiary intended to settle for the $400 and supposed that such sum was the consideration expressed in the paper which he signed, and that the word “ fourteen ” instead of “four" was fraudulently inserted in the paper before the same-was signed. The settlement was made in a room at a hotel at Lansing, Michigan, and the defendant, the adjuster who accompanied him, the local agent of the company at that place, and the beneficiary who presented the claim, were all present at the transaction. The paper was sent to the office of the company at Rochester and placed on file, and there treated as a settlement and adjustment of the claim at $1,400 and as a voucher for a disbursement of that amount, but by whom it was mailed or sent does not conclusively appear, though there was proof sufficient to warrant the jury in finding that it was mailed to the office by the defendant. It was for forging and uttering this paper that the defendant was indicted and tried. With respect to the charge of forgery by corruptly altering the instrument, it was assumed that the defendant could not be convicted if it was done in the state of Michigan or beyond the jurisdiction of this state, and the learned trial judge so charged in substance. • The signature of Wareham, the beneficiary, was admitted to" be, and beyond all doubt was, genuine, and thus the charge of forgery proper had to rest upon proof that the defendant, after the execution of the paper and within this state, altered the same by changing the word “ four ” so as to make it read “ fourteen.” The proof upon this point was of such a character that the learned trial judge, before the close of his charge, expressed his opinion that if the jury found the defendant guilty at all it must be of uttering the instruihent knowing it to be forged or counterfeit. The jury returned a verdict of guilty of forgery in the third degree in uttering the paper. In regard to the facts it was the theory of the defendant’s counsel that the word “ fourteen ” was fraudulently inserted or changed before the paper was actually signed by the beneficiary, and the proof at the trial, and all the circumstances tended to sustain this theory, though it may be there was not an entire absence of proof in support of the claim that the change was made by some one after execution. It is not important to examine the evidence in support of the last hypothesis, since the cause was tried and submitted to the jury upon the principle that, as to the charge of uttering the instrument, it was wholly immaterial whether the defendant made the change before or after it was signed. The learned judge so instructed the jury. At the close of the charge the defendant’s counsel requested the court to instruct the jury that if the instrument was altered before it was signed or executed no conviction could be had under the indictment for uttering a forged paper. The learned judge refused to so instruct; and to this refusal as well as to the charge as made, on this subject, there was an exception. It is apparent from the evidence given and now appearing in the record from the general course of the trial and from the charge, that this judgment cannot be sustained except upon the theory that the defendant committed the crime of forgery in the third degree in knowingly uttering or passing off as true, an instrument releasing and compromising the claim against the company, which defendant had procured, or induced the beneficiary to execute, by some fraud, device'or misrepresentation, with intent to defraud the corporation, of which he was the chief executive officer, and which, in fact, was used for that purpose, and had that effect.

By § 521 of the Penal Code a person who, knowing the same to be forged or altered, and with intent to defraud, utters, offers, disposes of or puts off as true, * * * a forged * * * writing or other thing, the false making, forging or offering of which is punishable as forgery, is guilty of forgery in the same degree as if he had forged the same. In order to bring a case within this section the thing or writing must be forged , altered or counterfeited, and if it is, then uttering it or passing it off as true, is punishable as the forgery itself. It is not necessary to prove that the accused forged or altered the writing himself. It is sufficient if it appears that he has knowingly uttered or passed it off as true, knowing it to be false, forged or altered. But this section has no application to a writing, the signature to which is genuine, and no change in which is shown to have been made after execution, but executed by the party under a mistake or in ignorance of the facts, induced by fraud or deceit. By § 514 an officer of a corporation who falsifies, or unlawfully or corruptly alters, erases, obliterates or destroys any accounts, books of accounts, records, or other writing, belonging to or appertaining to the business of the corporation is guilty of forgery in the third degree, and the same offense is committed under § 515 by any person who, with intent to defraud or to conceal any larceny or misappropriation by any person of any money or property, alters any writing belonging to or appertaining to the business of a corporation. The instrument in question was when executed, a writing belonging to or appertaining to the business of a corporation within the meaning of these sections, and if proved to have been changed in the manner stated in the indictment, after its execution by the defendant, he could have been convicted of forgery, if done within the jurisdiction of this state, or of altering or passing it off as true, if, knowing its character, he caused it to be deposited in the office of the company for the purpose of giving it effect or with intent to defraud the company.

But, assuming, as we must, that the word “ fourteen ” was fraudulently inserted, or that the word “ four ” was fraudulently changed before the execution, then the offense which the party committed was not forgery. No writing was altered within the meaning of the statute, but a fraud was perpetrated upon the company and, perhaps upon the party who signed the paper. IE the defendant, by means of such a paper, knowingly appropriated to his own use the corporate funds, he doubtless subjected himself to civil and criminal responsibility. We are not now concerned with the particular offense agains the Penal Code involved in such an act, as that question is not now before us, but it would seem to be clear that it does not and never did constitute the crime of forgery in any degree, and the altering of such a paper did not warrant a conviction under the indictment. In order to sustain any of the counts in this indictment it was incumbent upon the people to show that the defendant' corruptly and with intent to defraud, either forged or altered the paper after it had been signed, or that he uttered or passed it off as true, knowing that it had been so changed or altered. The word writing as used in these sections refers to an executed instrument, and it is so defined in §513. That section declares that “ An instrument partly written and partly printed, or wholly printed, with a written signature thereto, and any signature or writing purporting to be a signature of, or intended to bind an individual, a partnership, a corporation or association, or an officer thereof is a written instrument or a writing within the provisions of this chapter.” The learned court below was of the opinion that the crime of forgery is complete when it is shown that a party falsifies, a writing, and that in this case it was shown to be a false paper, as it was used to represent to the corporation that Wareham had been paid $1,400, when, in fact, he had been paid but $400. The paper was doubtless intended as a fraudulent device to obtain money from the corporation for the benefit of the defendant or whoever received it, but the use for which it was intended and to which it was in fact put did not make it a forgery. In order to establish the commission of that, crime it was necessary to prove, to the satisfaction of the jury, that the defendant, with intent to defraud, altered the paper after it was signed, for not till then was it a writing within the meaning of the statute, and it is the altering or passing off as true of a writing thus-altered, with knowledge that it has been so changed, that the statute punishes in the same way as the forgery or alteration itself. This was a false paper in the sense that it expressed a falsehood and was calculated to deceive and defraud ; but every false paper is-not necessarily a forgery. An instrument of this character is falsified within the meaning of the statute referred to only when, by some alteration after actual execution, it is made to speak differently from v hat it did when signed, or given a different, effect in some material respect, with a fraudulent or corrupt intent. We think that the case was submitted to the jury upon an erroneous view of the law applicable to the questions involved.

There are other questions in the case raised by exceptions taken in the course of the trial and to the charge and to refusals to charge. Some of these questions are of considerable importance and it-might be difficult to sustain the rulings upon them made at the trial, but as the point already discussed disposes of the appeal it. is not necessary for us to consider them, since they may not arise upon another trial.

The judgment should, be reversed and a new trial granted.

All concur.

Judgment reversed.


text:
    Samuel F. Clark, Resp’t, v. The State of New York, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. State—Labokebs.
    A general law regulating the compensation of laborers employed by the state, or by officers under its authority, which disturbs no vested right or contract, is within the power of the legislature to enact.
    3. Same—Reduction.
    The compensation of a state employe, when fixed by statute, cannot be reduced by the state officer under whom he is employed.
    3. Same—Estoppel.
    The fact that the employe takes for a time the reduced compensation, does not estop him from subsequently claiming the residue.
    Appeal from award of the board of claims, made Rovember 15, 1892, in favor of claimant.
    The facts, so far as material, are stated in the opinion.

      T. E. Hancock, attorney-general, for app’lt; John '0. McMahon, for resp’t.
   O’Brien, J.

The board of claims have made an award in this case in favor of the claimant based upon the following facts: The claimant was employed by the superintendent of public works during the season of navigation from May 1 to November 1 in the year 1889, as a locktender on the canal. No express agreement was made as to compensation, but payment was made monthly during the six months of his employment at the rate of $20 per month. This seems to have been the compensation theretofore paid to persons so employed. The claimant, during part of the time at least, signed the monthly pay rolls, and at no time during his employment did he make any claim that he was entitled to more. No question as to the liability of the state to pay the claimant any more could possibly arise upon these facts, except for the enactment by the legislature of chapter 380 of the Laws of 1889, which took effect on the 6th of June of that year. Although this statute was repealed by the succeeding legislature (Laws of 1890, ch. 218), it was in force during nearly five months of the period of the employment. As the award rests entirely upon this statute, it may be well to give it here in the language used by the legislature :

“ An act to regulate the rate of wages on all public works in this state, and to define what laborers shall be employed thereon.
“ Section 1. From and after the passage of this act wages of day laborers employed by the state, or any officer thereof, shall not be less than two dollars per day, and for all such employed otherwise than day laborers at a rate of not less than twenty-five cents per hour.
“Sec. 2. In all cases where laborers are employed on any public work in this state, preference shall be given to citizens of the, state of New York.
“Sec. 3. This act shall take effect immediately.”

I am unable to see why the claimant was not a laborer upon the public works of the state employed as such by a officer of the state within the meaning of this statute. If the claimant was entitled to its benefits he is not concluded by the fact that he received pay from time to time at former rates and signed the pay rolls. He has not released the state from any of its legal obligations to him. The superintendent, who is charged with the duty and vested with the power under the Constitution of employing all persons necessary in the care and management of the canal, might, notwithstanding this statute, have made contracts for labor and services before it was passed upon such terms and at such rates of compensation as in his judgment was most advantageous to the state, but the finding in this case implies that no such contract was made. The trial court might have found from all the facts and circumstances that the claimant agreed to perform the services for $20 per month and that compensation at that rate was what the parties intended, but the evidence was of such a character as to render another view possible. At all events under the circumstances of this case we feel concluded by the finding. The statute did not take effect until after the claimant was employed, and if he entered the service under a contract, express or implied, it could not be affected by subsequent legislation. The contract need not be expressed in formal words or in writing, but could be implied from the situation and conduct of the parties and from the circumstances.

There is no exception to the findings as made and there was no-request to find a contract from the facts disclosed. We must, therefore, treat the case as one of employment merely without any contract as to compensation, and this brings us to the question discussed by the learned attorney-gen eral in regard to the power of the legislature to enact the statute in question. By section three of article five of the Constitution, certain powers are conferred and duties imposed upon the superintendent of public-, works with respect to the care and management of the canals that may not be affected by legislation. People ex rel. Killeen v. Angle, 109 N. Y. 564; 16 St. Rep. 647. But in the exercise of these powers and in the performance of these duties he is not wholly independent of the legislature. The law-making power has the-sole authority over the subject of taxation and the appropriation of money. The funds necessary to enable the superintendent to perform the duty, of maintaining and managing the canals must be appropriated and are subject to legislative discretion. It may appropriate more or less, or not at all, according to its own views, of necessity and its own judgment as to what course will best sub-serve the public interests. It may direct how and in what particular manner the money devoted to canal maintenance may be ex-, pended, and, incidentally, it may fix the rate of compensation to be paid for services performed upon the canal when no contract, right is thereby impaired. It is said that to concede this power to the legislature would enable it to-paralyze the powers conferred by the Constitution upon the superintendent, since it might, by means of extravagant compensation to employees, waste the moneys devoted to the care and management of the canals. That may be true in the sense that all powers, legislative or otherwise, are liable to be abused. So it might refuse to appropriate at all, and the superintendent would be without any means whatever to enable him to perform his duties. But these extreme cases which show that power may possibly be abused, are no proof that it does hot exist. The court cannot construe the constitution so as to preclude all possibility of the abuse of power. There has always been ample room within the pale of the constitution for the misuse or abuse-of power conferred upon public bodies or officers, which is. subject in a large measure to the exercise of discretion. It must be assumed that the legislature, and all other public bodies intrusted with the functions of government, general or local, will use the power conferred by the constitution or the law fairly and in the public interests. There is no express or implied restriction to be found in the constitution upon the power of the legislature to fix and declare the rate of compensation to be paid for labor or-. services performed upon the public works of the state. That legislation is doubtless open to criticism from the standpoint of - sound policy and expediency, but the courts have nothing lo do with these questions so long as it is not in conflict with the constitution, and we think that a general law regulating the compensation of laborers employed by the state, or by officers under its authority, which disturbs no vested right or contract, was within the power of the legislature to enact, whatever may be said as to its wisdom or policy. That the law was neither wise nor practical may be inferred from the fact that it was promptly repealed at the very next session, and we have to deal only with such rights as the claimant upon the record acquired under it. Where the compensation of an employee of the state is fixed by statute, it cannot be reduced by the state officer under whom he is employed, and the fact that the employee takes for a time the reduced compensation, does not estop him from subsequently claiming the residue. Kehn v. State, 93 N. Y. 291; Riley v. Mayor, etc., 96 id. 331.

It is true that when the claimant was employed there was no statute regulating his compensation, and it was competent for the officers in charge of the canals to stipulate with him upon any measure of compensation that might be agreed upon by the parties, and the statute would have no application to this case during the period when the contract was in force. So that in this case a finding that the claimant entered into the service of the state in pursuance of a contract, express or implied, under which he was to render the service for the compensation paid, would defeat the claim, but, in the absence of such finding, we must dispose of the case upon the assumption that there was no such stipulation. This court will not look into the evidence for the purpose of mading a finding to reverse a judgment, though it mav do so for the purpose of sustaining it.

For these reasons, the award of the board of claims should be affirmed, with costs.

Award affirmed. ' All concur.


text:
    Jerry McCue, Resp’t, v. The National Starch Manufacturing Company, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Master and servant—Instruction.
    Where the master has a machinist in the factory to repair machinery, he is under no obligation to instruct the employees as to the manner of repairing or adjusting it when out of order.
    3. Sam®--Risk:.
    If the servant, in such case, attempts to repair without orders and is injured, the master is not liable.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for personal injuries received by plaintiff while in the defendant’s employ.
    The facts, so far as material, are stated in the opinion.

      M Countryman, for app’lt; Benjamin W. Downing, for resp’t.

      Reversing 50 St. Rep. 871.

   O’Brien, J.

The plaintiff, while in the employment of the •defendant, in the month of August, 1891, sustained a very serious injury to his right arm and hand, for which he recovered the judgment appealed from. There is little, if any, dispute as to the facts, and none whatever as to the manner in which the •accident occurred. The defendant’s business was manufacturing corn starch, The plaintiff had been employed in the factory as a day laborer for about three years prior to the injury in the feed department. In the room where the plaintiff was so employed there are a number of cisterns standing upon the floor in double rows, each cistern being six feet high and about sixteen feet in diameter, and each row of cisterns being separated from the other by a trough or gutter connecting with the cisterns ■on either side; and this gutter is covered with planks, forming a platform about two feet high from the floor, upon, which the workmen stand to pass to and fro in the discharge of their duties. There are several plug holes on the side of each cistern, which are used to draw off the water, and another one in the bottom ■operated by a crank at the top to let out the feed; and also one or two steps on the outside to enable the workmen to ascend high enough to remove and replace the plugs, as well as move the lever which sets the stirrer in motion. Over each row of cisterns thei'e is a line of shafting supported by a framework of beams about two feet below the ceiling. This shafting pierces the vertical cog wheel located over each cistern, which is fastened to the main shaft by means of a key or pin placed in a groove, and this cog wheel may be brought into connection with a similar horizontal wheel attached to the upper end or top of the stirrer, which when in operation, turns the stirrer used to stir up the feed in the cistern and to assist in expelling it therefrom through the plug holes. These cog wheels may, by means of a lever, be readily thrown in •or out of gear, for the purpose of starting or stopping the stirrer, and the whole line of shafting over the entire row of cisterns may also be disconnected from the power by which the machinery is run, by means of a clutch provided for that purpose.

The plaintiff’s duties as a workman consisted in managing these plugs, by removing and replacing them from time to time, and operating the lever over the cisterns or vats which placed the horizontal cog wheel in or out of gear with the vertióle wheel. This lever could be moved by standing on the upper step outside of the cistern. Sometimes the driving chain or belt which passes over the main power wheel in another part of the building, and connects it with the other machinery, would come off thus stopping the machinery. The plaintiff and other employees sometimes assisted in replacing this chain when the machinery was not in motion. With this exception the plaintiff’s connection with the care of the machinery or its use or management, seems to have been confined to moving the lever which placed the stirrer and the vertióle wheel in and out of gear.

On the 31st day of August, 1891, while the machinery was in motion and the plaintiff was performing his usual duties, the pin or key which locked one of the vertióle cog wheels over a cistern to the main shaft, dropped out, thus loosening the wheel so that it did not move with the shaft and did not turn the wheel oper.ating the stirrer, as it should have done. The plaintiff undertook to replace the key, and thus re-lock the wheel to the shaft, with a spike, and with this view, crawled up and over the framework which supported the shaft and wheel, and while the shaft was in motion inserted the spike with one hand while clinging with the ■other to the beam on which he lay. Having with some difficulty inserted the spike, the main cog wheel immediately moved with the shaft and caught his right arm, causing the injury.

There was a machine shop in the building fifty or seventy-five feet distant from where the plaintiff was, in which the defendant kept several machinists employed, whose duty it was to oil and keep the machinery in order. The plaintiff testified in substance that when employed he was directed to adjust the machinery when out of gear, and that it. was part of his duties to fix his own machinery. This doubtless referred to his duty to throw the horizontal wheel out of gear when necessary to stop the stirrer, and no injury resulted from that operation. The injury resulted from an attempt by the plaintiff to lock the vertical wheel to the main shaft. The testimony bn the part of the defendant, from several witnesses, was to the effect that the plaintiff was not required to repair or adjust machinery when out of order; that he had nothing to do with it but report the fact to the office of the machinist in the same building, whose duty it was to put it in order or make the necessary repairs. The complaint contained no distinct general allegation of negligence on the part of the defendant, but it did contain a specific charge of neglect in not furnishing the plaintiff with a safe place to work and suitable and safe machinery to operate. At the close of the evidence the court ruled that there was no case of negligence in omitting to furnish a safe place to work in or omitting to furnish safe, proper and adequate machinery shown, and refused to submit any such question to the jury, but did submit the case to the jury upon another theory which was not suggested in the complaint The learned judge charged the jury that the plaintiff’s case must rest upon the omission by the defendant to warn the plaintiff, who was a laborer not skilled in the use of machinery, of the danger incident to its use and the neglect to instruct him as to its use and as to the manner of adjusting it when out of order. The recovery was, therefore, had upon a ground not disclosed by the complaint. But as no specific objection was made upon this ground, it becomes necessary to examine the case upon the theory under which it was sent to the jury. As the defendant did not require day laborers to repair machinery out of order, but had a machinist in the factory to perform that duty, it was not necessary to instruct them as to the manner of z-epairing or adjusting it when out of order. The master had no reason to anticipate that when the wheel became unlocked from the shaft the plaintiff, while the machinery was in motion, would attempt to lock it. The sole cause of the accident was the attempt of the plaintiff to do that while the shaft was revolving. His duty did not require him to run such a risk. He received no order or direction from any one to attempt an operation involving so much danger. It was a voluntary act on his part not at all necessary to the performance of the work which he was employed to do. When he discovered that the vertical wheel was loose upon the shaft and undertook to fasten it, without stopping the machinery, he took upon himself the risks and dangers of the operation. líe thereby exposed himself to injury without cause, as common prudence required that he should report the fact to the machinist, who was in the same building, and who was charged by the master with the duty of doing what the plaintiff thus unnecessarily attempted to do. The operation which the plaintiff attempted to perform was not dangerous in itself, and was rendered so only by the fact that the machinery was not stopped while the pin which fastened the wheel to the shaft was being adjusted. The plaintiff alone was responsible for the result, as he was engaged in an act the danger of which was obvious, and which was outside of the duties which the master required him to perform. Crown v. Orr, 140 N. Y. 450; 55 St. Rep. 834; Cahill v. Hilton, 106 N. Y. 512 ; 11 St. Rep. 26. The evidence did not establish any personal neglect or fault on the part of the master. He was not required to give instructions as to the necessity in such cases, or the manner of stopping the movement of the shaft, as he could not reasonably anticipate that the plaintiff would attempt to do what he did. Moreover, the plaintiff had three.years’ experience in the performance of his duties. The machinery, so far as he had anything to do with it, was of the simplest kind. Whatever dangers were involved in the act which he attempted to perform were obvious, and as well known to him as to the master. He could not voluntarily do an act which he was not required to do and-charge the master with responsibility for the resulting injury. The accident was not caused by the plaintiff’s ignorance of the machinery. He had seen its operation of three years. He knew what was out of order and how to correct the difficulty, and his only mistake was in assuming that he could safely adjust the wheel to the shaft without cutting off the power. The plaintiff was injured, not because he was ignorant or needed instructions, but because he was not cautious, a fault which more frequently proceeds from confidence and familiarity with the use of machinery than from ignorance. The master is always at fault when such an injury results from unsuitable or defective machinery which he could have repaired or replaced by the exercise of reasonable care, but that question was not submitted to the jury. The verdict is based upon the principle that the master failed to perform his' duty to the plaintiff in not warning him against the possibility of such an "accident or instructing' him how to avoid it. This imposed upon the defendant a measure of responsibility not warranted by the rules of law. The judgment must, therefore, be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.


author: Ar/DBEWS, Ch. J.

text:
    Felix Campbell, App’lt, v. Olivia E. P. Stokes et al., Resp’ts.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Parties—Partition—Remaindermen.
    Remaindermen, whether their interests are vested or contingent, who are in being when a partition action is commenced and presumptively entitled to possession on the death of the life tenant, are necessary parties to such action.
    8. Same.
    They are not hound by a conveyance of the estate to which their interest attaches, unless they are parties thereto in fact or in law.
    3. Will—Construction.
    The will, in this case, was so construed as to give to the issue of any child of the testator, living at his death, a vested remainder in the share held in trust for the parent, subject to open and let in after-born children, and to be divested by their death before the death of the parent; and it was held that they took, as remaindermen, independent of the power of conveyance given to the trustees.
    Appeal from judgment of the general term of the supreme court in the judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term, overruling a demurrer to defendant’s counterclaim, sustaining said counterclaim and directing judgment in favor of defendants.
    This action was brought to compel specific performance of a contract, under which defendants agreed to purchase from plaintiff certain real estate in the city of Hew York.
    Defendants set up a defect of title, and, as a counterclaim, asked to recover the amount paid by them on the execution of the contract, and for expenses and counsel fees in the examination of the title. The counterclaim was demurred to by plaintiff and the demurrer overruled.
    Plaintiffs claimed title under a deed given to carry into effect a sale under a judgment in an action brought to partition said premises. John Mortimer, Jr., died seized and possessed of an interest therein; he left six children and sixteen grandchildren him surviving. The children were made parties to the partition suit, but the grandchildren were not. The residuary clause of the will of said Mortimer is as follows:
    “IV. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be in possession, reversion and remainder, I order and direct my executors and trustees to divide into so many shares as I shall have children living at my death, and children who shall have died leaving lawful issue living at my decease, such issue to represent such deceased child, and upon such division to allot to each then living child of mine one such equal share, and to the issue then living of any of my children who may have died leaving such lawful issue one such equal share, and I order and direct my executors and trustees to dispose of such shares from time to time, as follows:
    “1st. I give, devise and bequeath one of said equal shares to the lawful issue (living at my death) of each deceased child of mine, to take the same per stirpes and not per capita, to have and to hold the same to them, their respective heirs, executors, administrators and assigns forever, and I direct my executors and trustees to convey, transfer, pay over and deliver the said share accordingly.
    “2d. I give, devise and bequeath one of said equal shares for each of my children living at my decease unto my executors and trustees as a separate fund, to have and to hold the same in trust, to receive the rents, issues and profits thereof, and to apply the same to the use and support of such child, for and during her and his natural life.
    “3d. Upon the death of my daughter or son for whom the same is held in trust, I order and direct my said executors and trustees to convey,- transfer and pay over and deliver the said share to her and his lawful issue per stirpes and not per capita, to- have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever.
    “4th. Upon the death of any of my said children without lawful issue him or her surviving, I order and direct my said executors and trustees to convey, transfer and pay over and deliver the share so held in trust for such child, to and among some or one of my descendants or the widow of any son of mine according to the directions that may be contained in the said last will and testament of such daughter or son, or in an appointment in the nature of a last will and testament made by her or him, to the person or persons in the share or proportions and according to the . terms, provisions and conditions therein directed and contained.
    “ And I hereby authorize and empower such child of mine so dying to make such last will and testament or appointment in the nature thereof, appointing or directing the disposition aforesaid to or among any of my descendants or the widow of any son of mine, but not otherwise, whether such daughter be a feme sole or feme covert at the time of the making thereof.
    “5th. Upon the death of the daughter or son for whom the said respective share is held in trust without leaving lawful issue at her or his death, and without leaving any last will and testament or appointment in the, nature thereof, appointing or directing a disposition of the same to or among the persons above designated, then I order and direct my said executors and trustees to convey, transfer, pay over and deliver the said share to my lawful issue per stirpes and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever.
    “ 6th. I authorize and empower my said executors, and the survivors and survivor of them, from time to time, in their or his discretion, and notwithstanding any directions herein to the contrary, to pay, assign and transfer to either of my sons such part of the securities invested for his benefit as they or he in their or his judgment and discretion shall deem best, that they hold the residue of such securities, if any, for the benefit of my said son in the trust and for the purposes declared of and concerning the whole of his-share, and I further authorize my executors and trustees from time to time to pay over to either of my said daughters such part of the said securities invested for their benefit as they may deem best, not exceeding the sum of five thousand dollars, and I direct, authorize and empower my executors on the decease of any son of mine to apply to the use of his widow, if any, my said sons shall leave, during her widowhood, one-third part of the interest and income arising from the part or share of my estate ordered to be set apart for the benefit of my said son, or so much of the same as may remain at the death of my son if any advance shall have been made to him pursuant to this clause of my will, providing the son dying and leaving a widow shall have failed to leave a valid will or to make any valid appointment in the nature thereof, and the residue of such shall be disposed of my said executors as hereinbefore directed.”
    . Further material facts are stated in the opinion.

      James Troy, for app’lt; William Allen Butler, for resp’ts,

       Affirming 49 St. Rep. 357.

   Ar/DBEWS, Ch. J.

John Mortimer, Jr., had six children living at his death, in September, 1875, and sixteen grandchildren, some or all of whom are still living. The scheme of his will, made in March, 1875, was to divide his residuary real and personal estate into shares, and give to each of his surviving children the income of one share for life, and the principal of such share on the death of any child to his issue then surviving. He contemplated the possible death of a child before his death, leaving issue surviving, and in that case such surviving at testator’s death was to take absolutely the share of the deceased child. In case a surviving child should die after the death of the testator, leaving no issue living at his or her death, then the share of the one so dying was to be subject to certain dispositions not now necessary to be stated. All the testator’s children survived him, and the provision made for the issue of a deceased child who may have died before the testator, leaving issue surviving at the testator’s death, became inoperative. To effect the scheme of the testator the will directed his executors and trustees to divide his residuary estate into so many shares as he should have children living at his death, and children who should have died leaving lawful issue surviving at the testator’s death, and to allot one share to each child surviving him, and a share to the issue of any deceased child. By the fourth section of the will, which prescribes the disposition to be made of his residuary estate, the testator devised and bequeathed to the issue of any child who had died before him, leaving issue surviving at the testator’s death, one share absolutely, as before stated. He devised and bequeathed to his executors and trustees one of said equal shares for each of his children living at his death, in trust to receive the rents, issues and profits thereof, and apply the same to the use and support of such child during his natural life. The third subdivision of section four of the will provides for the disposition of the principal of the share of any such child on his or her death, as follows : “ Hpoh the death of my daughter or son for whom the same is held in trust, I order and direct my said executors and trustees to convey, transfer and pay over and deliver the said share to his or her lawful issue per stirpes, and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever.” Then follow provisions for the disposition of the share of any child on his or her death “without lawful issue him or her surviving.”

It is plain that, upon settled rules of construction, the issue of any child of the testator living at his death, took under the will a vested remainder in the share held in trust for the parent for life, subject to open and let in after-born children, and to be divested by their death before the death of the parent. The limitation in its general aspects is very familiar, and one frequently found in wills. ' Upon the death of the testator, individuals of the class entitled to take in remainder were in existence and ascertainable. The only contingency which would defeat their remainders vesting in possession was their death before the death of the parent. It was a subsequent and not a precedent condition. The direction that the trustees on the death of the parent should “convey, transfer and pay over and deliver” the parent’s share to to his or her issue, was inserted to emphasize the right of the remaindermen, and was not the foundation of their title. The whole scope of the will negatives the idea that' their rights were dependent in any way on the action of the trustees, or that the vesting of their interest awaited the exercise by the trustees of the power to transfer, convey and deliver the share to the issue so entitled. The testator did not intend to die intestate as to any portion of his property. The whole was given to his children and their issue. The trust was created to secure to his sons and daughters the beneficial enjoyment of their several shares for life and to preserve the principal for their issue, and careful provision was made for the disposition of the share of any child in the contingency of his or her death leaving no issue surviving. There is no room for the application of the technical rule sometimes resorted to, to ascertain whether an interest given by a will is vested or contingent, that where the gift is only found in the direction 1 to divide at a future day, this circumstance may be considered and have weight. It is a rule for ascertainting the real intention of a testator and not for defeating it. Those entitled under this will as remaindermen took, not because the power of division was given to the trustees, but independently thereof, as primary devisees in remainder under the will. The class may be enlarged or diminished, or the rights of the issue of any child may be extinguished by the extinction of such issue by death before the termination of the life estate, but this does not effect the question. The issue living are presumptively entitled in remainder, and during the life of the parent, they living, have a vested future estate in the parent’s share. The case of Moore v. Appleby, 108 N. Y. 237 ; 13 St. Rep. 492, is a direct authority for the conclusion above stated and follows prior cases as" well as the rule of the statute. Mead v. Mitchell, 17 N. Y. 210; Moore v. Littel, 41 Id. 76 ; 1 Rev. St. 723, § 13. The case of Townshend v. Frommer, 125 N. Y. 446; 36 St. Rep. 153, does not and was not intended to overturn the general doctrine, the remaindermen are not bound by a conveyance of the estate to which their interest attaches unless they are parties thereto in fact or in law. The case was peculiar and anomalous and involved complicated questions under the law o£ trusts and powers. It arose under a trust deed, whereby the grantor retained the beneficial use of the property and which contained directions for the disposition of the fee after her death, to persons who were not ascertainable until the happening of that event. The intention of the grantor, deduced by the court from the transaction, was to postpone the accruing of any future interests until that event happened. The present case affords no ground for such a presumption. Whether the remainders in this case were vested or, contingent, the persons in being when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties.

This leads to an affirmance of the judgment.

All concur.

Judgment; affirmed.


text:
    Herman Stuber et al., as Administrators, etc., App’lts, v. James McEntee, Resp't.

      (Court of Appeals,

      Filed April, 1894.)

    1. Release—Personal injuries.
    A claim for personal injuries under the statute cannot be barred or released before suit except by some person who has authority to bring the action at the time, and who, in a legal sense, represents the right of action.
    3. Same—Credit.
    Upon the subsequent appointment of such releasor as administrator of the estate, the releasee is entitled to be credited, with the amount paid thereon, by the jury in making their estimate of the damages which should be recovered.
    3. Trial—Nonsuit.
    Upon a nonsuit, the plaintiff is entitled to the benefit of every fact established and inference properly drawn therefrom, .and to have the case viewed in the light most favorable to himself.

      A. Edward Woodruff.¡ for app’lts; Thos. C. Ennever, for resp’t.

      Reversing 47 St. Rep. 294.

   O’Brien, J.

— The plaintiffs’ intestate, a young man about eighteen years old, was killed about May 12, 1890, while working in a hole or trench about thirteen feet deep and four or five feet square, by the caving in of the earth and stone which formed the wall of the excavation. The defendant is a plumber and the deceased was his apprentice. The plaintiffs sought to maintain this action upon the allegation that the death was the result of negligence on the part of the defendant in not properly shoring up or supporting the walls of the excavation where the deceased was at work. The trial resulted in a nonsuit. It was shown, in behalf of the defendant, that after the death he paid to one of the plaintiffs in this action, a brother-in-law of the young man, the sum of $400, which was used by the family to pay the funeral expenses and the cost of a lot in the cemetery and to purchase a gravestone to mark the burial place. The plaintiff who received the money was not then, but subsequently was appointed, one of the administrators of the deceased. He gave a receipt for the money to the defendant in which it was stated that the payment was for all expenses-caused by the untimely death of the young man, and “ further, that I shall have no further claim whatsoever against Mr. McEntee.” In deciding the motion for a nonsuit, the learned trial judge as sumed that a case of negligence on the part of the defendant, in omitting to shore up or support the excavation, was shown, but granted the motion on two grounds: (1) That the deceased was guilty of contributory negligence. (2) That the receipt for the payment of the $400 was a settlement of the claim and a bar to-the action. Actions for damages by reason of injuries resulting in death were unknown to the common law, and are founded, wholly upon the statute. The cause of action is no part of the assets of the estate of the deceased. The statutory liability has no existence in his life time and accrues only by reason of his-death. It is not subject to the payment of the debts of the deceased nor to the ordinary rules applicable to the settlement and administration of the estates of deceased persons. Code §§■ 1902, 1905. The damages are not general assets of an estate o£ a deceased person in the hands of the executor or administrator and subject to their control, but are exclusively for the benefit of the decedent’s husband or wife and next of kin. The claim before suit cannot be barred or released except by some person who has authority to bring the action at the time and who in a legal sense represent the right of action. When the plaintiff Krause gave the receipt and received the money he was in no such position and had no authority to bind the next of kin of the deceased by a settlement or release. The cases cited by the learned trial judge in support of his view do not, we think, control the question. It is only necessary to refer to the two leading cases in this state. Rattoon v. Overacker, 8 Johns. 126; Priest v Watkins, 2 Hill, 225. These cases hold that when a person assumes to collect the assets or credits belonging to the estate of a deceased person, and who subsequently is appointed administrator of the estate and in that capacity brings an action upon the claim so collected, the prior payment made to him before his appointment is a defense to the party against whom the claim existed and who made the payment-For the purpose of protecting parties making payment in good faith to the widow or other person without authority to collect the assets at the time, the letters, when subsequently issued to them, are deemed to relate back so as to legalize such payments. But these do not hold that a stranger may compromise a claim due to an estate on receiving a part only of what is due and thereby stop himself in a subsequent suit, in a representative capacity, from collecting the residue. ■ If there is any such rule of law in the administration of the estates of deceased persons it has no application in an action like this for the recovery of unliquidated damages under a special statute by the next of kin resulting from a negligent or wrongful act, causing the death of their intestate. We have no doubt that the defendant was "entitled to prove the fact of payment and its application to the expenses of the funeral and burial of the deceased, and to be credited with the same by the jury in making its estimate of the damages which the plaintiff should recover, if any. In this way the principle decided in the case above referred to is given full effect, but to hold that the receipt operated as an accord and satisfaction would be extending its operation in a manner to accomplish results that cannot be sustained by reason or authority.

If the defendant made the excavation for the deceased to perform his work in, or if, having seen its condition, he directed him to work in it, then the servant was not, as matter of law, guilty of contributory negligence. It was a question for the jury within the doctrine of Kranz v. L. I. R. R. Co., 123 N. Y. 1; 33 St. Rep. 46. It is now claimed that there is no proof that the deceased was directed by the defendant to work in the trench, or that the defendant dug it, or had ever seen it, or that he knew anything about it, and hence negligence on his part was not established. It must be admitted that the proof on these points is very meagre. The course of the trial, however, would seem to indicate that they were assumed and such was the view of the learned judge in granting the motion for a nonsuit. It may be that upon a full trial it maybe made to appear that the master was not so connected with the excavation as to render him responsible for the results of the accident. But, as the plaintiffs were nonsuited they are now entitled to the benefit of every fact established and every inference that might properly have been drawn by the jury, and that the case must be viewed in the most favorable light that it could fairly have been by the jury, had it been submitted upon the evidence as given. It was sufficiently shown that the defendant was engaged in the plumbing business, that the deceased was his apprentice, in his employment, and, when killed, actually engaged in plumbing work in the excavation. In the absence of any other proof or explanation the inference that the trench was the place which the master furnished the servant in which to do his work, would seem to be reasonable or at least possible. In the receipt which the defendant took for the $400 the deceased is described as “a plumber assistant in the employ of said Mr. McEntee.” Nothing appears in the case to justify any inference that the deceased was at the time of his death working for any other person or subject to any other directions. Moreover, we think the defendant tendered no issue in his answer in the form required by the Code upon the allegations of the complaint which was to the effect that the defendant caused the trench to be made and directed deceased to work in it. On this point the allegation of the complaint is as follows : “ That on or about the 12th day of May, 1890, the plaintiff’s intestate William Stuber, while in the employ of the defendant, was directed by the defendant to go down and do certain work in an excavation, which the defendant had caused tobe made in West One Hundred and Sixteenth street, in the city of New York, between Seventh and Eighth avenues, in said city, about 400 feet or thereabouts east of Eighth avenue, and while in said excavation and following the directions of the defendant, the said excavation, by reason of its not having been properly constructed by said defendant, and by reason of the neglect and improper conduct of the defendant in not properly constructing and making said excavation, and in not making the same safe and fit to work in, and in accordance with the Laws of the State of New York in such case made and provided, the earth on the side and around such excavation fell in and' upon the plaintiff’s intestate, the said William Stuber, and covered and buried him in the said excavation, inflicting injuries which caused his death.”

It will be seen that the fact that the defendant directed the deceased to work in the excavation which he had caused lo be made is 1 sufficiently alleged. The defendant has put the allegation in issue only by the use of the following language in the answer:

“ First. This defendant denies that he directed William Stuber to go down and do certain work in an excavation to which this defendant had caused to be made in West One Hundred and Sixteenth street, in the city of New York, between Seventh and Eighth avenues, in said city, about four hundred feet or thereabouts, east of Eighth avenue.”

This is not such a denial as is authorized by the Code. It is a species of negative pregnant. Wall v Buffalo Water Works Co., 18 N Y. 119 ; Baker v. Bailey, 16 Barb. 54. It may be that, in the absence of a motion to correct and make more certain, such pleadings may be regarded as good upon appeal. But the whole scope of the answer, even when setting up affirmative defenses assumes the fact the absence of which is now claimed to be fatal to the plantiff’s appeal. In view of the fact that the nonsuit was not granted on any such grounds, but, on the contrary, the defendant’s negligence was assumed in granting the motion, considering the form and substance of the pleadings, the manner in which the trial was conducted and the inferences which the jury where entitled to draw from the proof given, we think that this point is not now sufficient to sustain the judgment of nonsuit, and that there should "be a new trial.

The judgment should, therefore, be reversed and a new trial granted; costs to abide the event.

All concur.

Judgment reversed.


author: Gray, J.

text:
    Chas. S. Murphy, Resp’t, v. William Jack et al., App’lts.

      (Court of Appeals,

      Filed April, 1894.)

      1. Appeal—Order reinstating attachment.
    Order of general term, reinstating an attachment upon insufficient evidence, is reviewable in the court of appeals.
    3. Attachment—Apetdavit.
    The information, upon which an attachment is based, may he conveyed through the medium of the telephone, if it appears that the affiant knew, in some satisfactory way, that it was the plaintiff who was speaking with him.

      This action was brought to recover for goods sold and delivered by plaintiff to defendants. The complaint was on information and belief and was verified by one of the plaintiff’s attorneys, who, in the verification, stated the reason for his making it to be the absence of the plaintiff in Massachusetts, and that his belief was based upon the statements made to him by the plaintiff and by the Boston attorney. Accompanying the complaint, and sworn to upon the same day, was an affidavit by the same attorney, in which he stated that, as he was informed and believed, the plaintiff was 'entitled to recover the sum claimed as damages for the breach of an express contract, over and above all counterclaims known to the plaintiff, upon a cause of action existing in his favor against the said defendants, upon the facts set out in the annexed complaint and that, as deponent was informed and believed, the said defendants are not residents of the State of New York, but that both reside at Gardiner, in the State of Maine. The affidavit then proceeds to state that the “ deponent’s belief as to the facts above stated ” is based upon statements of the plaintiff and the plaintiff’s Boston attorney, “ who have both talked to deponent this morning over the telephone from Boston,” and that “ they narrated the facts to deponent exactly as they have been set forth in the complaint, etc.” The affiant asked for an attachment, “ without waiting for affidavits to be obtained from Boston,” upon the ground that the property was “ likely to be removed.” A warrant of attachment having been issued upon the complaint and affidavit, an application to vacate it was granted. Upon appeal to the general term, the order vacating the attachment was reversed and the attachment reinstated. The defendants now appeal to this court..

      Henry D. Hotchkiss and William S. Maddox, for app’lts; Sullivan & Cromwell and Edward B. Hill, for resp’t.

       Reversing 58 St. Rep.

   Gray, J.

If the affidavit was insufficient, upon which this attachment was ordered, a question order of the general term is undoubtedly reviewable here. Allen v. Meyer, 73 N. Y., 1; Steuben County Bank v. Alberger, 78 id., 252. In this case the writ was applied for upon statements made upon the information and belief of the deponent, and the question is whether the information concerning the material facts, appeared to have been acquired in such a manner as to justify the judge in acting upon it. Was the source of the information such as the judge could accept as satisfactory? The affiant, in such cases, is not required to have a personal knowledge of the facts required to be stated ; but it is essential that his information must appear to have been competently derived; as otherwise the judicial officer, whose action has been invoked, is without jurisdiction to proceed. It is clear that the attorney in this case obtained his information by a communication made through the telephone upon the morning of the day upon which the complaint and affidavit were sworn to, and that his belief was based upon it, in making his statements concerning the facts constituting the cause-of action, the absence of counterclaims, and the non-residence of the defendants. Those were the material facts required to be proved to the satisfaction of the judge, and we do not think that the proof as to the source of the information concerning them was sufficient, for the reason that there was lacking any degree of certainty that the plaintiff himself ever made the communication to the affiant. There would be no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff and recognized his voice, or if it had appeared in some satisfactory way that he knew it was the plaintiff who was speaking with him. None of these facts, however, were averred. There was absolutely nothing upon which the judge could pass to show that it was the plaintiff who was speaking and not some undisclosed person who, in the plaintiff’s name, furnished to the attorney the information made use of. The perfection to which the invention of the telephone has been brought has immensely facilitated the inter-communication of individuals at distant points, and inasmuch as the voice of the speaker is heard, in most, if not in all cases, the identification, of the speaker should be possible. The very facility of communication and of identification permits, and, therefore, imposes a duty upon the party who invokes judicial action upon the strength, of information so received, to state his knowledge or his grounds-for believing that it actually came from the party required to-furnish it To authorize an attachment to issue upon the affidavit furnished here was in disregard of the rule which requires that the source of the information shall be disclosed in such a way as-to enable the court to decide upon the probable truth of the statements and the authenticity of the jurisdictional facts. Judicial action upon such a source of information as was here disclosed was-justified below by analogy with telegraphic communication. The analogy is incomplete. If the information comes through the telephone, it is quite possible to identify the speaker. Then, too, there is not, in the case of a telephonic communication, any record, like the message which, in the case of the use of the telegraph, remains for reference and verification.

For theser easons, as well as for those stated in the opinion of Mr. Justice Barrett, as special term, and of Mr. Justice VanBrunt, dissenting at the general term, the order of the general term - should be reversed and that of the special term should be affirmed, with costs in all the courts.

All concur.

Ordered accordingly.


author: Pratt, J. Barnard, P. J.,

text:
    The People ex rel. Lucy D. Kittridge et al., Resp’ts, v. John Mabie et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Villages—Act of 1870.
    The provisions of § 28, title 8, chap. 291 of 1870 apply only to villages incorporated under it.
    Appeal from an order in favor of relators.
    The village of Peekskill, Westchester county, was incorporated by a special act in 1816, amended several times, and finally consolidated in Laws 1883, c. 117, which fixed the village boundaries. July 19, 1892, the county board of supervisors ordained an -enlargement of said boundaries so as to include a large additional territory, embracing lands of relators. Laws 1870, c. 291, a general law to incorporate villages, by § 33 of title 8, empowers supervisors to enlarge the boundaries of any incorporated village, but in § 28 expressly confines the application of the act to villages incorporated thereunder. Laws 1884, c. 308, grants the' trustees and officers of any village created by special charter the same powers as are prescribed in any general act for the incorporation of villages, except as such special charter may conflict therewith.

      Leverett F. Crumb, (Edward Wells, of counsel), for app’lts; Cyrus Wm. Horton (George F. Canfield and Franklin Couch, of -counsel), for resp’ts.
   Pratt, J.

Section 28, tit. 8, d 291, Laws 1870, provides, in terms, that its provisions shall only apply to villages incorporated under it. The fact that the legislature in 1873, and again in 1893, passed special acts concerning the village of Poughkeepsie, shows it was not then supposed that the board of supervisors had the powers now claimed. The act of 1884 gives no such powers. The order of the special term must be affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J.,

(dissenting). The village of Peekskill was incorporated by special act. Flo right was given by its charter to increase its territory. Chapter 117, Laws 1883. The general act for the incorporation of villages was only applicable to villages incorporated under its provision. The boards of supervisors had the power to extend village limits in such villages as were incorporated under the general act. By chapter 308, Laws 1884, all villages created by special charter were clothed with all power prescribed by the general act for the incorporation of villages within this state, except where the special charter is in conflict with the general law. This section gave the trustees of Peekskill village power to petition for an increase of territory, and the power ■given to the supervisors to extend or diminish territories in villages under the general law was carried to villages created by ■special charter through the enactment of 1884. The village limits were therefore properly extended, and the order directing the assessors to vacate the assessment of relators’ property should be reversed, and the writ of certiorari dismissed, with costs.


author: Pratt, J.

text:
    Michael Fines, Resp’t, v. Charles Sillery et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Tbial—Plaintiff’s case.
    Plaintiff’s case may be established by the cross-examination of defendant’s witnesses.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.

      William S. Cogswell, (Louis Malthaner, of counsel), for app’It; William J. Marshall, for resp’t.
   Pratt, J.

Appellant urges that the testimony introduced by plaintiff is insufficient to sustain the judgment. It must be admitted that, when plaintiff rested the case, it was a close question. But the trial judge wisely “ heard the other side,” and the cross-examination brought out facts which established plaintiff’s cause of action. It thus appeared that the Italian whose blunder caused the injury was on that day employed at this work for the first time; that defendant made no inquiries about him—knew nothing of his fitness, having merely notified the “ patron ” how many laborers were needed. And the foreman, upon whose directions, only, the stone should have been lowered, testified that he gave no such order. After this evidence, there is no-serious question of defendant’s liability.

Judgment affirmed, with costs.

All. concur.


author: Ingraham, J.

text:
    Emil Oelbermann, Pl'ff, v. The New York & Northern Railroad Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed February, 1894.)

    1. Corporations—Powers.
    A corporation stockholder may purchase the bonds of a company whose-stock it owns.
    3. Same—Ultra vires.
    If such an act is ultra vires, the stockholders of the purchasing company, and the people of the state, are the only parties who can object to-the transaction.
    3. Same—Injunction.
    That a majority stockholder, who is also a creditor, wishes or hopes; that the corporation may fail, is no reason for enjoining the creditors from, collecting their debts.
    Demurrer to complaint on the ground that the complaint', does not state facts sufficient to constitute a cause of action.

      Simon Stern, for pl’ff; Ashbel Green & Thomas Thacher, for def’t New York Central & Hudson River Railroad Company and Drexel, Morgan & Co.; Sherman Evarts, for the New York & Northern Railroad Company.
   Ingraham, J.

The complaint in this action is quite voluminous and contains many allegations of the motives intention of the defendant, the New York Central Railroad Company and Drexel, Morgan & Co., stated to be reprehensible, but I am unable to see that any fact is alleged that would entitle the plaintiff to any of the relief demanded.

The action is brought to restrain the defendant; the New York Central Railroad Company, from voting on certain stock owned by it, at the election of officers of the New York and Northern Railroad Company, and restraining the Farmers’ Loan & .Trust Company, as trustees under a certain mortgage, from foreclosing that mortgage, and the complaint asks for a receiver for the New York & Northern Eailroad Company, and for other and further relief. ,,

There is no allegation that any of the defendants to the action have acquired any interest in the property of the New York & Northern Eailroad Company, except so far as it is alleged they are stockholders or the holders of bonds of the said company, and the action, therefore, cannot upon the allegations contained in the complaint be turned into an action to recover an interest in the property of the New York & Northern Eailroad Company, that had been acquired by any of the defendants. What has to be now determined, is whether or not the plaintiff is entitled to any relief, conceding the facts alleged in the complaint to be true.

The plaintiff apparently lays great stress upon the allegation that the act of the officers of the New York Central Eailroad Company in purchasing the stock of the New York & Northern Eailroad Company was ultra vires and hence void, but I do not see, conceding that to bo true, how that can give the plaintiff the right to any relief in this action. When the New York Central Eailroad Company purchased that stock from its holders, and paid its money for the stock, the former holders of the stock parted with their title thereto. The only persons who could object to that transaction were the stockholders of the Central. Eailroad Company or the people of the state. The plaintiffs, as stockholders of the New York & Northern Eailroad Company, had no interest that would entitle -them to object to the right of the New York Central Eailroad to invest its money in the stock of another corporation, and as to all the world except those interested in the New York Central Eailroad or the people of the state, the title to the stock purchased by the New York Central Eailroad Company vested in it.

The complaint alleges that the default in the payment of the coupons upon the bonds of the New York & Northern Eailroad Company occurred on June 1st, 1892, though by the terms of the mortgage the default did not become operative until one year from that date, and it was competent for the said railroad company at any time within said period of one year to pay said coupons and be relieved from said default. There is no allegation, however, that the said New York & Northern Eailroad Company at any time within that year had the money necessary to pay said coupons. It is suggested that the stockholders might and would have, by an assessment on their shares of stock, provided the necessary funds to meet said interest charges; but it is not alleged, nor docs it appear, that the said New York & Northern Eailroad Company had the power to assess its stockholders to pay that amount.

It appears that on January 28, 1893, the defendant, J. Pierrepont Morgan, a member of the firm of Drexel, Morgan & Company, purchased the majority of the stock and of the second mortgage bonds of the New York & Northern Eailroad Company, and the said Morgan, being then the holder and owner of said securities, on or about the 18th of March, 1893, sold the same to the New York Central Eailroad Company, and, so far as appears, this was the first time that the Central Railroad Company became the owner of any of the stock or bonds of the New York & Northern Railroad Company. No fact is alleged to show that the New York Central Railroad Company did any act that prevented the New York & Northern Eailroad Company from paying its past due interest, except that it refused to advance the money out -of its own pocket to pay such interest, and the allegation that the majority of the stockholders had a purpose to get the property of the New York & Northern Eailroad Company does not give a Tight of action. Some unlawful act of the majority stockholder must be alleged that is either actually accomplished or is contemplating to accomplish that purpose.

It is a novel proposition that a bondholder of a railroad company who is also a stockholder cannot insist upon the payment of his bonds because he also owns the stock of the company, but is bound not only to forego his right to collect the amount due him, but he is also obliged to contribute to pay interest on other “bonds held by the company when the company is unable to meet its obligations.

The complaint further alleges that having acquired the securities mentioned, the New York Central Eailroad offered to lease the property, franchises and privileges of the New York & Northern Eailroad Company and voted upon the stock held by it in favor of such lease. The other stockholders, including the plaintiff, objected to such lease and, in consequence of their objection, the same was not consummated.

The subsequent allegation that the New York Central Eailroad Company purchased additional bonds of the New York & Northern Eailroad Company and subsequently requested the trustees or procured Drexel Morgan to request the trustee to foreclose the mortgage to secure the payment of such bonds, •gives to the plaintiff no cause of action, as that act was not unlawful. The New York & Northern Eailroad Company, so far as appears, had no money to pay its coupons and the holders of the bonds had the right to require the trustees to foreclose the mortgage upon the failure of the railroad company to pay the interest on the bonds ; nor is any fact alleged that would justify the court in enjoining the trustee from prosecuting such foreclosure suit, or prevent the holders of the bonds from obtaining the relief to which they were entitled.

The complaint alleges that two of the stockholders of the New York & Northern Eailroad Company who were opposed to the foreclosure of the mortgage, one of such stockholders being one of the plaintiffs in this action, were made parties to that foreclosure proceeding, and interposed a defense to that action. Nothing appears to show why all of the plaintiffs in this action could not have been made parties to the foreclosure suit, and could not have obtained all the relief demanded in this action except the injunction restraining the New York Central Eailroad Company from voting on the stock held by it in that foreclosure suit

I have carefully examined the complaint to see if there is a single allegation of any act either of the New York Central Railroad Company, or of Drexel, Morgan & Company, or J. Pierrepont Morgan, or the Farmers’ Loan & Trust Company that was illegal, or that they had not a legal right to do, and I fail to find any such act alleged. The allegations of the intention of the parties and of their conspiring together to carry out what is characterized as the inequitable, unlawful and fraudulent purposes therein before set forth, gives no cause of action, unless the acts which are alleged as having been performed or contemplated, were unlawful or illegal, and no such act is alleged.

The Central Railroad Company has purchased the stock and ■owns it and it has a right to vote upon the stock held by it, no matter what its intention in voting is, as long as its vote does not injury the minority of stockholders. It had a right to purchase .the bonds of the New York and Northern Railroad Company, and when the bonds became due to enforce the right of a bondholder secured to it under the provisions of the bond and mortgage given to secure the bond, and whether or not the action to foreclose the mortgage was properly brought was to be determined in the foreclosure suit and not in an independent action. It would answer no good purpose to notice each point made by the counsel for the plaintiff in his brief submitted, in favor of ■sustaining the complaint in this action. Most of the propositions of law there stated do not apply, for as before stated, it is the acts either performed or contemplated which give a cause of action and not the motives or intent that move a defendant to perform the acts.

Assuming that the majority stockholders of a corporation owe to the corporation and the minority stockholders a duty to protect the property of the corporation, and that there exists a trust or quasi trust relation between the majority and minority holders of the corporate stock, a court of equity cannot interfere until ■such a majority stockholder does some overt act that is a violation of the duty that it owes to the minority stockholder. The mere fact that the majority stockholder wishes or hopes that the •corporation will fail or be unable to pay its debts, is no reason why a court of equity should enjoin the creditors from collecting their debt, even though the majority stockholder is also a creditor; nor is there any principle which entitles a minority stockholder to compel the majority stockholder to pay the debts of a corporation, when the corporation itself is insolvent and unable to pay its debts.

As before stated, the complaint alleges no overt act either performed or contemplated by any of the defendants which violate ■any right of this plaintiff, and as no illegal act has been done or contemplated, the plaintiff shows no cause of action for an injunction. The plaintiff, however, claims to be entitled to judgment, declaring that the Central Railroad Company accquired the second mortgage bonds and any benefits to be derived from them .as trustee for all the stockholders ; but, as before stated, there is no principle that prevents a stock-holder from purchasing the obligation of a whose stock he and assuming that the plaintiff would be, under any circumstances, entitled to the benefit of the purchase by the Central Railroad Company of the second mortgage bond, he may elect to adopt such purchase and offer to contribute his proportion or share of the money paid therefor. The complaint contains no such allegations, nor is it alleged in the complaint that the New York Central Railroad Company has acquired any advantage or benefit from the purchase of the bonds in question.

I think it clear, therefore, that no cause of action is alleged in the complaint, and the demurrer must be sustained with costs, with leave to the plaintiff to amend within twenty days on the payment of costs.