author: Peckham, J.

text:
    Hiram Gilmore, App’lt, v. The City of Utica, Resp’t.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Municipal corporations—Assessment for paving—Street railroad.
    The fact that the rails for the use of horse cars, in a street repaved by-defendant, were relaid in different positions and that an additional track had been laid down since 1884 by the lessee of the original company, does not take the case out of the principle that the section of the charter of Utica authorizing the common council to require the railroads to repair between their tracks was discretionary, and therefore the omission to assess the railroad company with part of the expense of repaving did not render the assessment void.
    2. Same.
    The resolution for proposals was adopted April 6. The plans and specifications for paving were filed on the líth and 18th days of May, and May 28th the common council passed an ordinance providing for the repaving to be done according to the plans and specifications on file in the clerk’s office. Held, that a separate approval by the common council of the plans and specifications before the publication for proposals is not required by the statute and a failure to do so will not avoid the work thereafter done.
    3. Same—Notice.
    The resolution of the common council directed the clerk to publish the requisite legal notice for proposals for paving Genesee street according to plans and specifications to be prepared by the surveyor. The clerk having followed its directions, Held, that the fact that the resolution did not specify the day when the common council would meet to take final action did not render the subsequent proceedings void.
    4. Same.
    Jurisdiction by the common council was not lost by the error which rendered the first publication unavailable as a compliance with the statute.
    5. Same.
    The specifications were not void because those filed provided in the alternative for the repavement of thirty-six feet in width, with street railroad tracks outside the curbs, and between the curbs and sidewalks, or for the repavement fifty-two feet wide, with a single or double street railroad track m the centre of the street. • ,
    6. Same—“ Most favorable ” bid.
    Where the common council has the power to accept the “most favorable bid,” this does not compel it to accept the lowest bid.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendant.

      W. A. Matteson and P. O. J. De Angelis, for app’lt; A. M. Beardsley and Josiah Perry, for resp’t.

       Affirming 40 St. Rep., 7.

   Peckham, J.

First. The fact that the rails in Genesee street for the use of the horse' cars therein were relaid in different positions in the street and an additional track laid down,"by the Utica Belt Line Street Railroad Company since the year 1884, does not take the case out of the principle already decided by us when this case was here before. 121 N. Y., 561; 31 St. Rep., 880. Although the work was actually done by the company above named, yet the rails were nevertheless relaid and the track added by this company in its character as lessee and in the right of the lessor,, and the provisions of the 9th section of chapter 252 of the Laws of 1884 (the general street railroad act), under which the lessee was organized, do not apply any more than they were held to-apply on the former appeal.

Second. The plaintiff also claims the assessment is void because the resolution of the common council calling for proposals was adopted April 6th, and before any plans or specifications-for the work were prepared or filed. The plans and specifications were in fact filed on the 11th and 18th days of May respectively,, and on the 28th day of May the common council passed an ordinance for the purpose of providing for the pavement of Genesee street with Trinidad asphalt pavement, the work to he done according to the plans and specifications then on file in the clerk’s office.

The statute is somewhat ambiguous in wording and is rather blindly drawn, but we cannot say that the resolution deciding to pave according to plans and specifications to be prepared by the city surveyor was void because such plans were not then prepared. They must have been prepared before the final ordinance was adopted, and so they appear to have been. There was no separate approval by the common council of the plans and specifications before the publication for proposals, but I do not see that the statute necessarily requires it and a failure to do so ought not to be regarded as avoiding the whole work thereafter done. It would he a very proper proceeding, for thereby it would appear before the adoption of the ordinance that the common council does approve the plans, etc. But notwithstanding this absence of approval in advance, the common council did approve the plans and specifications when it took final action in regard to them and the proposed work by awarding it to the company which finally did the work. This was done by ordinance adopted in May and subsequent to the filing as stated.

Third. Another ground of illegality is claimed in the fact that the ■common council did not itself prescribe in so many words and in ■detail the exact time for the publication of the notices spoken of in the statute and did not itself specify the day upon which it would meet and take final action in regard to the proposed work. The council by the language of the resolution permitted the city . clerk, as the plaintiff claims, to not only make the requisite legal publication of the notices, but also to himself specify the day when the council would meet for final action. The plaintiff urges that this action or omission of the common council was in fact the delegation of a matter of discretion vested in it to some other person.

The statute requires the council, before adopting the ordinance, "to cause a plan and accurate specifications of the work proposed to be constructed to be prepared and filed with the city clerk, and “it shall then cause to be published in the official newspaper, for three alternate days, a notice of the filing of the said plans and specifications, and that on a certain day, at least six days frdm the first publication thereof, the common council will act in relation to its coristruction, and in the meantime sealed proposals for constructing the work, with bonds for the faithful performance thereof, will be received by the mayor.”

The resolution of the common council directed the clerk to publish the requisite legal notice for proposals for paving Genesee street according to plans and specifications to be prepared by the surveyor. Acting under this resolution, the clerk commenced the publication "of the notice required by law. The publication was thus caused by the common council, for it was done by the proper officer under its direction. It is true it did not specify in its resolution the "day 'when it would meet to take final action, but having directed that the requisite legal notice should be given, and the clerk having followed its directions, we do not think it so far delegated to another a material discretionary power that must be solely and wholly exercised by itself, as to render all its subsequent acts void as not authorized by statute.

The day fixed upon by the clerk under the resolution was actually at least six days from the first publication of the notices, and the plans, etc., were all on file prior to such publication. In truth, the requisite legal notice was published, and the common council met on the day mentioned therein, and then passed the ordinance and awarded the "contrack This is not like the case of the State v. Jersey City, cited by counsel for appellants, and reported in 25 N. J. (1 Dutch.), 309. The notice there actually given was not a compliance with the statute, because there was added a condition which the council itself had no right to make.

Here the statute plainly pointed out the kind of notice, the •■shortest length, the manner of publication and the contents thereof, and every condition of the law was complied with, excepting the council did not itself appoint the day of its meeting, although it, in fact, met as the notice stated, and transacted the business specified therein. This failure to itself appoint a day did not so far affect the jurisdiction of the common council over .the subject-matter of this work as to avoid all subsequent proceedings, including the assessment laid to pay for the work actually accepted by the common council. It was at most an irregularity, omission or error, which is provided for in § 62 and other sections of the charter, and under which the proceedings resulting in this assessment must be upheld as valid and effectual, notwithstanding such irregularity. So long as the error does not partake of the nature of a jurisdictional defect, the statute cures it. Ensign v. Barse, 107 N. Y., 329; 12 St. Rep., 39; Joslyn v. Rockwell, 40 id., 274. Nor was jurisdiction lost because the clerk in publishing the notice required by April 6 made such an error or slip in the first publication that it went for nothing. The clerk attempted to carry out the directions of the common council, but failed in his first effort. He then essayed another, and made the proper publication, and the common council met as published, and performed the official business proper to be done and awarded the contract.' There is no evidence that any one was misled or harmed, or that any one failed to bid on account of the mistake in the first notice. It is not claimed, indeed, that the mistake in the first publication was anything else than the purest technical error.

We think it was entirely proper to treat the first publication as of no validity whatever and to proceed wdth the second publi-" cation, naming a different day for the meeting of the council, as . if it were the first execution of the orders of the council. There was some error in the first publication which rendered it fruitless and illegal, and hence it was no execution of the directions of that body. Jurisdiction by the common council over the subject-matter was not lost by the error which rendered the first publication unavailable as a compliance with the statute.

The same may be said of the first publication being commenced before the filing of the plans and specifications. They were both filed before the commencement of the publication of the notices under which in fact the common council took action.

Fourth. The plaintiff finds fault again upon the ground that there never were any accurate plans and specifications filed, because those which were filed provided in the alternative for the repavement of thirty-six feet in width with street railroad tracks outside the curbs and between the curbs and sidewalks, or for the repavement, fifty-two feet wide, with a single or double street railroad track in the centre of the street

We think there is no weight in this objection. If there were plans, etc., in the alternative, we see no ground for a charge of illegality therein. If the work would be more costly in proportion to the work done if prosecuted with reference to one plan than the other, the offer or proposal could be in the alternative. If the only difference would lie in the extent of the work, a bid per yard or a bid of that nature would entirely obviate the difficulty. Here again is an entire absence of proof that any injury has been caused a human being bv reason of this kind of alternative plan. There is no evidence that any one was misled or prevented from bidding or that the cost of the work -actually done was enhanced a penny by reason of this kind of plan. It is of the purest technicality,, and under these circumstances dburts should not be astute to find some means of setting aside what so far as the evidence shows is a meritorious assessment levied for the payment of the cost of a public improvement.

Fifth. Another ground for avoiding the assessment is, as alleged by plaintiff that the bid of the company which has actually done the work under the award of defendant was not the most favorable, because, as he says, it was not the lowest. The council has the power to accept the most “favorable bid.” At first it accepted the bid which was the “ lowest,” but subsequently it rescinded that resolution and declared the bid of the company which, in fact, did the work, t.o_ have been the “ most favorable,” and then awarded it the contract. Generally it would be perhaps true that the lowest bidder would be the “most favorable.” This is not, however, true as a matter of law. The lowest bidder might not have either the necessary capital, experience or facilities for doing the proposed work, and might be trusting to the chapter of accidents to furnish him with all these necessities in case his bid were accepted. In matters regarding his own business an individual would frequently be acting with the highest economy, and with the truest regard to his own interests, by employing the highest bidder for his proposed work, rather than the lowest. So long as the council was entrusted with the power of awarding the contract for the work to the person making the most favorable proposal, the presumption of official integrity would attach to the action of that body, and in general something more would be necessary to impugn that action than mere proof that there was a lower bid than the one accepted.

Sixth. The plaintiff also charges that the assessment is void because the contract under which the work to be paid for was done contained a provision requiring the contractor to keep the pavement and concrete foundation in perfect repair for five years from the time of its completion, and providing that the compensation for such keeping in repair should be included in the stated contract price per square yard of pavement.

In the plaintiff’s argument it is stated that the charter requires that the expense of repairs of streets shall be payable out of the fund§ of the city at large, and that by § 99 the property abutting on the street which is repaved shall be assessed two-thirds of the expense of such improvement. By including in the contract to repave the amount of a sum sufficient to keep the street in repair for five years, it is said that the owners are thereby charged with two-thirds of the expense of such repairing, when the statute says it shall be repaired at the expense of the city.-

It is doubtful whether the. charter fully bears out the contention of the plaintiff in this regard. The plaintiff refers to § 47, by which it appears that the council is authorized to raise a sum by taxation not to exceed $5,000, to repair city streets and keep crosswalks in good condition, and one-half only is to be expended on paved streets. It does not appear that the common council would not have the right to provide that for making all other and necessary repairs to paved streets requiring more than $2,500 the-expense should be assessed upon the property benefited.

The language is not the same nor necessarily of the same import as that stated in People v. Maher, 56 Hun, 81; 29 St. Rep., 639, for in that case the law provided for the city making all repairs to pavements in the streets paved with a certain kind of pavement. This particular ground of invalidity was not mentioned in the complaint nor in any manner referred to upon the trial, and appears to have been taken at the general term for the-first time. While it' is true the plaintiff is not bound to plead what he terms his theory of the law, yet justice and the proper-way of trying a cause would appear to demand that at least a. statement of the grounds upon which the assessment is assailed should be mentioned on the trial. The learned counsel says that, the ground here taken could not have been obviated if it had been mentioned at the trial. That does not appear. If stated, the defendants might have shown the plaintiff had waived that particular ground, or that he was by some equitable considerations , estopped from setting it up, or that he had released the defendant from all liability on that ground.

Without, therefore, deciding the question on the' merits, we-think it was too late to raise it for the first time on appeal.

We have looked carefully over the other grounds set up by-plaintiff for vacating this assessment, but none of them is of sufficient weight to justify such a result. We think the judgment, should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    The Traders’ National Bank of San Antonio, Texas, Resp’t, v. Charles T. Parker, App’lt.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    Bills and notes—Consideration.
    Defendant signed a promissory note at its maturity upon plaintiff agreeing to forbear proceedings against the other makers, no definite period of. time for such forbearance being stated. Defendant was a creditor of one: of the other makers who was embarrassed financially, and who owned 13,000 sheep which were about to be sold under a chattel mortgage, and defendant was to go to Colorado City to attend the sale with the idea of realizing something therefrom on his debt. Meld, that plaintiff really waived its right to sue until defendant could attend the sale and this was a. valid consideration which made him liable on the note.
    (Follett, Ch. J., and Yann, J., dissent.)
    Appeal from a judgment of the general term of the first judicial department, affirming a judgment entered upon the report of a, referee.

      David Wilcox, for app’lt; John Lindley, for resp’t

       Affirming 29 St. Rep., 373.

   Brown, J.

On or about February 11, 1884, the plaintiff was the owner and holder of an over due promissory note for $10,265.-65, made by one J. P. Hodgson and one F. W. James, and was insisting upon the payment thereof, and threatening to bring suit thereon against the makers. The defendant thereupon, with a view to obtain an extension of time for the payment of said note, affixed his signature thereto under the signatures of Hodgson and James.

This action is upon the contract thus made, and the defense relied upon in this court to defeat a recovery is, that no consideration for the defendant’s contract was shown.

The referee found that the consideration consisted in the plaintiff's agreement to extend the time of payment of said note, and to delay proceedings for the collection thereof, but that it did not state or agree to extend for any definite period of time; and upon defendant’s request he further found that “ when the defendant signed the note in suit plaintiff did not waive its right to sue Hodgson and James or either of them upon the same whenever it saw fit.”

If the latter conclusion is to be treated as one of fact, it is clearly in conflict with the other findings; as an agreement to extend the time of payment which did not bind the plaintiff to withhold suit for some time would be no agreement at all, and the defendant would be entitled to the benefit of the rule that, when findings are so inconsistent that they cannot be reconciled, those which are most favorable to the appellant are controlling upon the appellate court. Redfield v. Redfield, 110 N. Y., 671; 18 St. Rep., 560; Wahl v. Barnum, 116 N. Y., 87-99; 26 St. Rep., 457.

But it is the duty of the court if possible to reconcile these findings. It is only when this cannot by reasonable construction be accomplished that it is bound to accept the finding most favorable to the appellant. Green v. Roworth, 113 N. Y., 462; 23 Rep., 149.

The findings of the referee taken together are to the effect that, while the plaintiff was to delay proceedings for collection of the note, and the defendant put his signature to it in consideration of the agreement of the plaintiff to give the makers further time upon the note, the plaintiff did not state or agree that it would extend for any definite time, nor did it waive its right to sue the makers, Hodgson and James, or either of them, upon the note whenever it saw fit. The latter findings were pursuant to request of the defendant, and the last one seems to import the effect of the former as the referee understood it In that view the others represent the agreement as made between the parties, and the last one, without qualification of their terms, embraces what the referee seems to treat as the interpretation to which in his view they were entitled. While this does not seem quite consistent with the conclusion of law reached by the referee, it is not necessarily inconsistent with the agreement between the parties as found by him, and, therefore, does not control the construction and effect to be given to those findings in support of the judgment.

While all the evidence taken upon the trial is not before us, there is a certificate in the record that the “ case contains so much of the evidence as is material - to the questions to be raised," and we may presume therefore that all the evidence bearing upon the question of consideration is in the case. Beferring to the testimony we find that the defendant was a creditor of "Hodgson, one of the makers of the note. Hodgson was embarrassed financially, and other creditors were pressing their claims against him. He was the owner of a herd of 13,000 sheep, which were about to be sold at Colorado City under a chattel mortgage. The defendant, desired to purchase the sheep at the sale, and wanted to borrow the money from the plaintiff to enable him to do so, and to have the proceedings for the collection of the note withheld. With this object in view he visited the plaintiff at San Antonio with James, the joint maker of the note. The plaintiff refused to make the desired loan, but it offered to extend the time for the-payment of its note if the defendant would sign it.

Mr. Brownson, the president of the plaintiff bank, testified that-he agreed to withhold suit on the note and extend the time of' payment Asked as to the time of the .extension, he said, “ I don’t think any definite time was agreed upon; it was to depend very much upon the movements of the other creditors of Hodgson. The proceedings at Colorado City were to cut some figure? in what we were to do ; it was left somewhat to the wishes of Mr. Parker.” And it appeared that Parker thought that something on the plaintiff’s debt might be realized out of the sale of the-sheep, and that he was to go to Colorado City, which was about eighteen hours ride by railroad from San Antonio, and attend the-sale, and that it was contemplated by the parties that he should advise the plaintiff from that place, and that he did so, and that. Mr. Brownson went there at his request, but he refused to advance money to buy the sheep.

Mr. Thornton, the cashier of the bank, testified that they were pressing Hodgson for a settlement and threatened him with suit. That it was about term time of the court, and they had threatened to put the paper through at that .term, * * * and the-proposition was made that if the bank was satisfied on the paper it would withhold suit. It thus appears that nothing was said about the right of the plaintiff to sue whenever it saw fit, and the conclusion of the referee that the plaintiff did not waive its-rights is an inference from the evidence, and was not an existing or independent fact itself, and as was said in Green v. Roworth, supra,it was ih that respect rather a finding upon a question of law than one of fact-.”

It certainly was the intention and agreement of the parties that, sufficient time should be allowed by the bank during which the defendant could go to Colorado City and examine into the condition of Hodgson’s affairs there, so that he might judge of the possibility of realizing something out of the sale of the sheep that could be applied to the payment of the plaintiff’s note, and this, was a matter of considerable importance and benefit to him. And it is clear, I think, that suit was to be withheld upon the note-until after the sale at Colorado City, and whether further extension should be given was to depend somewhat upon the defendant’s wishes in the matter. The period during which suit was to-be withheld was not fixed at any certain number of days, weeks? or months, but it does not follow that the plaintiff did not waive its right to sue immediately on the note, and the evidence leaves? no doubt that it did waive such right until the defendant could go to Colorado City, and there make such examination as he desired and communicate the result to the plaintiff, and any prosecution upon the note during that time would have been a plain violation of plaintiff's agreement Treating the finding I have quoted as an inference from the facts proven and not as a distinct fact of itself, we have no difficulty in affirming the judgment upon the facts found by the referee.

The appellant contends that because the plaintiff did not agree to extend the time of payment for a definite period, there was no consideration for defendant’s contract, and he cites Atlantic Bank v. Franklin, 55 N. Y., 235, and Perkins v. Proud, 62 Barb., 420, as authorities for that contention.

In the Atlantic Bank case there was no agreement not to sue.. The evidence showed indulgence merely. In Perkins v. Bond, the court said to make forbearance a valid consideration there must be a binding agreement to forbear either for a definite time or for a reasonable time. Neither of these cases support' the appellant’s claim. On the contrary the whole current of authority is to the effect that an agreement to withhold suit is a good consideration to support a promise to pay a debt although no fixed and definite time is expressly agreed upon. Rolles Abgt., 27, pl. 45; Brandt on Suretyship & Guaranty, § 8; 1 Parsons on Contracts (6th ed.), 444; Walker v. Sherman, 52 Mass., 170-172; Mecorney v. Stanley, 62 id., 85-88; Hakes v. Hotchkiss, 23 Vt., 231; Calkins v. Chandler, 36 Mich., 320; Lonsdale v. Brown, 4 Wash., 148; Downing v. Funk, 5 Rawle, 69; Sidwell v. Evans, 1 Pen. & Watts, 383; King v. Upton, 4 Me., 387; Elting v. Vanderlyn, 4 Johns., 237; Watson v. Randall, 20 Wend., 201; Mut. Life Ins. Co. v. Smith, 23 Hun, 535.

The. legal effect of such an agreement is to bind the creditor to withhold suit for a reasonable time. What would be a reasonable time, if not always a question of fact, would at least be a mixed question of law and fact, depending for its solution upon the circumstances of each case.

The precise question at issue here was déeided in this state in Eltinge v. Vanderlyn, supra. There the judgment was attacked on the ground that the promise to pay was on consideration of an indefinite forbearance, and was void. The court said: “ The consideration of forbearance generally is sufficient without setting forth a specific time. There was, in fact, a total forbearance for a long time, which brings the case within that of Mapes v. Sidney, Cro. Jac., 683.” This case has never been questioned or overruled.

In the case _ before us there was total forbearance, as no suit was ever brought against Hodgson or James on the note.

The general rule is that the waiver of any legal right, at the-request of another party, is a sufficient consideration to uphold a promise.

There was clearly such a waiver shown in this case, and the referee having found an express agreement to that effect, judgment in the plaintiff’s favor necessarily followed.

The judgment must be affirmed.

All concur, except Follett, Ch. J., and Yann, J., dissenting.


author: Follett, Ch. J.

text:
    Johann Reichel, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Master and servant—Negligence of co-servant—Evidence.
    Plaintiff was injured while climbing out of the ash-pit in defendant’s round house, and claimed that defendant’s engineer approached the ash-pit with his locomotive without ringing the bell. Upon-the trial the court charged the jury that “ it is claimed by the plaintiff that the negligent and improper construction of the defendant's track, and the relative position of the water plug and the stopping place on the ash-pit was an improper and negligent construction of it. It is for you to say whether that is so.” Held, error.
    3. Same.
    The fact that the helper did not ride on the locomotive on its trip from the switch to the round house was not, so far as is disclosed by the evidence, the fault of defendant, but of the engineer or helper, both of whom were co-employees with the plaintiff. Reid, that defendant was entitled to have the jury instructed that negligence could not be found from the fact that but one person was on the locomotive at the time of the accident.
    Appeal from, a judgment of the general term of the superior court of. Buffalo, entered on a verdict which was reviewed at the general term in the first instance.

      M 0. Sprague, for resp’t; James F. Gluclc, for app’lt.

       Reversing 29 St. Rep., 999.

   Follett, Ch. J.

This action was brought by an employee against his employer to recover damages for a personal injury occasioned by the negligence of a co-employee. The accident occurred in the yard of the West Shore Eailway at Buffalo, while that corporation was in the hands of receivers. Afterwards the defendant became the lessee of their railway and assumed the liabilities of its receivers.

The gravamen of the complaint is that the receivers negligently employed an unskillful and careless servant, whose negligent conduct on the occasion in question caused the injury. The negligence of the receivers is set forth in the following language.

“That on or about the 7th day of May, 1885, the said receivers of said railway no negligently and carelessly conducted, directed and managed said railway and their employees, and employed, engaged and continued in their service upon said railway unskillful, incompetent and unlearned, workmen, known to said receivers, or of which they had means of knowledge, whereby the injury was occasioned. * * * ”

“ That said injuries were caused solely and by reason of the negligent and careless directions and management of said railroad and the employees by said receivers, and the negligent and careless employment of unskillful, unlearned, reckless, incompetent and worthless workmen in, about and upon said locomotives, yards, tracks, dangerous machinery, etc., and in the operation-thereof at their instance, and with full knowledge or means of knowledge of said receivers.” Wilber Gr. Sartwell, the engineer in charge of the locomotive at the time of the accident, was the only employee whose skill and care the plaintiff attempted to-impeach on the trial, and the only negligence imputed to him as a cause of the accident was that he approached the ash pit with his locomotive without ringing its bell. Whether it was rung was-a disputed question of fact, and so was the issue whether Sartwell had previously been unskillful and reckless in moving locomotives in the yard, to the knowledge of his superior officers, or so-frequently and under such circumstances that it was negligent in them not to have known of his conduct.

Whether the court erred in submitting these questions to the jury, or in the instructions by which they were submitted, need not be considered, as we think a new trial must be granted for an instruction relating to another branch of the case. The court-said : “ It is claimed by the plaintiff that the negligent and improper construction of the defendant’s track, and the relative position of the water plug, and the stopping place of the ash pit. was an improper and negligent construction of it It is for you. to say whether that is so.” To this instruction the defendant took an exception, and asked in various forms the court to instruct the jury that there was no evidence which would authorize-them to find that the yard was improperly or negligently constructed, which was refused, and an exception taken. In this-we think the court erred. At the time of the accident there was-in the defendant’s yard at Buffalo a round house, with stalls or compartments for twenty locomotives, which faced east, and immediately in front, partly within and partly without the segment-of the circle occupied by the building, is a turn-table, from which four tracks extended easterly and were connected by switches with various trades in the yard. Track No. 1 was known as the ash pit track. No. 2 as the turn-table and yard track. No. 8 as the coal track. No. 4 as the back track. One hundred and twenty feet east of the turn-table, and between the rails of track No. 1, there was an excavation, 170 feet in length and from three to four feet in depth, called an ash pit, into which ashes from the locomotives were dumped, and afterwards shovelled out and carried away. Twenty-nine feet east of the east end of this pit there was a water plug, from which water for the locomotives was taken and also water to cool the ashes in the pit. Further east this- track curved to the right. When a locomotive headed west towards the round house stops opposite to this plug to take water it covers twenty-five or thirty feet of the east end of the ash pit, and water was taken and ashes dumped at the same time. Afterwards the locomotive was moved by the power of its accumulated steam into the round house.

It was the custom of the defendant to give water to its locomotives which were going into the round house, and free them from ashes, in the way described. Before April 30, 1885, the plaintiff had never been employed about a railroad, but on the date mentioned he hired to the receivers of the West Shore Com.pany to work as a common laborer in the Buffalo yard. He was hired by Henry Conrad, who was sworn as a witness for the plaintiff, and testified: “I hired this man Beichel; he understood the kind of work he was to do ; he was to go shoveling these things, and do work around the round house; he went to work with the other men, and was doing this wrecking off and on, to the day of the accident; I had eight or ten men in my employ at that time; I saw this man Beichel there; he is a fairly intelligent man, appears to know his business and to be able to attend to it.” The plaintiff testified that Conrad notified him to look out for the locomotives.

On the 7th of May, 1885, the plaintiff was engaged in shoveling ashes from the east end of this pit, and seeing a locomotive approaching from the east attempted to get out of the pit, but he was caught and his left leg crushed by the wheels of the locomotive, so that amputation was necessary. Frank Brenning, who was at work in the pit with the plaintiff, lay down upon the approach of the locomotive, and was not injured. The only evidence of negligent construction of the defendant’s yard was in the nearness of the water plug to the ash pit.

It was shown, by undisputed evidence, that the usual mode of freeing locomotives of their ashes before taking them into the round house was by means of ash pits like the one in use in this yard, and we do not think the jury should have been instructed that they might find that the yard was improperly constructed on the simple, isolated fact that the ash pit and water plug were so located that a locomotive could take water and be freed from its ashes at the same time. At the time of the accident, and for a few moments previous thereto, but one person, Sartwell, the engineer, was on the locomotive. Some discussion occurred between the court and counsel, after the charge had been delivered, as to whether the defendant could be found liable because a second man was not on the locomotive at the time of the accident.

Among other requests the following was proffered, declined, and an exception taken; “ I ask the court to charge that, the evidence being undisputed that in the performance of the work in the shop yard, in the operation of the road, that the engines were always operated by one hostler, and that such method had been found sufficient in the business of the road up to the time of the injury. The jury cannot consider the fact that there was but a hostler, and not also a helper on the engine with him, as a ground for finding that the receivers failed to furnish a sufficient number of men to run the engine and operate it properly.”

Philip Sauer, a witness who testified in behalf of the plaintiff, said; “I saw Mr. Beichel after the accident happened. They had taken him out and were putting him on the engine to take him up to the city. Mr. Sartwell was in charge of that engine. _ I know Mr. Sartwell; he was working with me, X was helping him. ^ He was a hostler on running engines in and out there. I had assisted him not more than a week.” * * * “I was helping Sartwell. Seventy-nine was the number of the engine that caused the injury to this plaintiff. 1 was in the round house at the time of the accident. • That is about two hundred feet away.” * * * “I was on this particular engine, Ho. 79, during the time that it came up to the switch. I do not recollect the circumstance whether or not the bell was ringing on that engine. I wouldn’t say positively whether she stopped at the water plug. I got off the engine at the switch, and I wouldn’t go up that track to the round house. I would go around back of the round house and up into the round house, but of course I didn’t go up the other track until after he started with the engine. It was moving when I left it at the switch, and I couldn’t see it any more after I walked ten feet” “At the time I j umped off this engine at the switch, I didn’t see it except for about ten feet. I then lost sight of it and went round to the round house. To get to the round house it didn’t take but, I should say, a moment or two.”

The defendant did not negligently fail to provide this locomotive with two employees, for the undisputed evidence is that Sartwell was employed as the engineer and Sauer as his helper. The fact that the helper did not ride on the locomotive on its trip from the switch to the round house, was not, so far as is disclosed by the evidence, the fault of the defendant, but of Sartwell or of •Sauer, both of whom were co-employees with the plaintiff. The defendant was entitled to have the jury instructed that negligence •could not be found from the fact that but one person was on the locomotive at the time of the accident

The judgment must be reversed and a new trial granted, with •costs to abide the event.

All concur, except Potter, J., not voting.


author: Vann, J.

text:
    Russell W. Ostrander, App’lt, v. Joseph Hart, Ex’r, et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Former adjudication—Ejectment.
    Plaintiff claims title under a deed from an assignee in bankruptcy, conveying the interest which Joseph Hart had on July 6, 1878. Defendants claim under a sale on foreclosure of a mortgage given prior to that time. It was claimed that at the time of the foreclosure the mortgage was paid. The sale took place under an agreement by which the bankrupt's wife was to have the property for the costs of foreclosure. An action was thereafter brought to which the bankrupt and his assignee were made parties to set aside the sale, in which the sale was adjudged valid. The asignee did not answer. Held, that such judgment was not a bar to this action. There was no judgment against the assignee, nor in form or effect did it determine the ultimate rights of the assignee.
    53. Same—Appeal.
    An omission by the trial court to find facts claimed by the unsuccessful party to be warranted by the evidence can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code.

      Appeal from a judgment of the general term of the supremo court, in the second judicial department, affirming a judgment entered on the decision of the court upon a trial without a jury.
    This was an action of ejectment brought to recover the possession of eight lots of land situate in the village of West Flushing, county of Queens, of the value of $2,000.
    The defendant, Joseph Hart, individually owned the premises-in question on the 6th of July, 1878, when he filed a petition in bankruptcy, and included said lands in his schedule of assets. On the 9th of August following said Hart was duly adjudged a bankrupt, and on the 11th of April, 1879, one Louis F. Post was appointed assignee of his estate. The premises in question were conveyed to the assignee by the register in bankruptcy on or about April 17, 1879. On the 23d of April, 1887, by due course-of procedure in bankruptcy, the interest of Hart in said premises, at the time when his petition was filed was sold to the plaintiff by said assignee for the sum of fifty dollars.
    August 17, 1876, said Hart, who then owned the premises, and Sarah Hart, his wife, executed and delivered to one Sanders a mortgage thereon, collateral to a bond of even date, to secure the-payment of $7,000. Said mortgage was subsequently foreclosed bjr advertisement under the statute in behalf of said Sanders, the data of the first publication of the notice of sale being March 27,1879, and on the 20th of June, 1879, said premises were sold thereunder to Sarah Hart, who afterward' died in possession of the-same, leaving a will by which Joseph Hart was made trustee for the benefit of her children, and authorized to sell her real estate. Hnder this will Joseph Hart, as trustee, on the 16th of February, 1886, sold the lands in question to the defendant Prince, who, through his tenants, was in possession of the same when this action was commenced.
    In February, 1885, said Sanders commenced an action in the-supreme court against Joseph Hart individually, and as executor and trustee under the last will and testament of Sarah Hart, deceased, Louis F. Post, as assignee in bankruptcy of Joseph Hart,, and others, and demanded, as the relief to which he deemed himself entitled, that the affidavits made and recorded in said foreclosure proceedings should be adjudged void and canceled of record; that all the rights of the defendants in said premises-should be foreclosed and the premises sold to pay said mortgage. He based his claim to this relief upon the allegation that at the time of saidstatutory foreclosure he believed he had money enough in his possession belonging to said Joseph Hart to pay said mortgage, which he foreclosed at Hart’s request for Mrs. Hart’s benefit, so that she could bid in the premises, but that he was afterwardscompelled by a judicial proceeding, to which neither Hart nor his wife was a party, to apply said money in another direction. Said Louis F. Post, as assignee, did not answer or appear in said action, although the summons and complaint were personally served upon him. Joseph Hart, both individually and as trustee, served an answer in which he alleged that Sanders duly agreed with Sarah Hart to convey the mortgaged premises to her without charge, or to have the same struck off to her at the sale under the foreclosure proceedings then pending. He made no demand for relief against any co-defendant, but simply asked that the complaint be dismissed, with costs. Ho copy of the answer was ■served on Post.
    Upon the trial of that action, the court found that on the faith ■of the agreement between Sanders and Mrs. Hart she advanced moneys to her husband, and that she acquired rights under the sale that her estate was entitled to hold, although the claim secured by the mortgage was paid. A decree was entered against the plaintiff Sanders in favor of Hart, as trustee, etc., and of his ■children, who appeared by guardian ad litem, “ that the foreclosure proceedings set up in the complaint were regular and valid,. and the plaintiff is not entitled to have the same vacated or set aside ; that the title to the mortgaged premises was duly and regularly vested in Sarah Hart during her lifetime, and that the defendants aforesaid have judgment herein upon the merits against the plaintiff.” The remainder of the judgment was for costs in favor ■of Hart and his children against said Sanders as plaintiff. Ho other relief was granted in favor of or against any party to the action.
    The trial court, after finding the foregoing facts in substance, found as conclusions of law that said decree was a bar to this action ; that Sarah Hart acquired a good title to the premises, and that it is now vested in the defendant Prince; that the sale by Post, as assignee, conveyed no title to the plaintiff, as Joseph Hart had been divested of his interest by the foreclosure of the prior mortgage, and directed that the complaint be dismissed, with costs.

      H. Countryman, for app’lt; James B. Lockwood, for resp’ts.

       Affirming 30 St. Rep., 170.

   Vann, J.

The learned"judges of the general term were of the opinion that the judgment in Sanders v. Hart was a bar to a recovery by the plaintiff in this action, and they affirmed the judgment rendered by the trial court on that ground. As the assignee in bankruptcy was a party to that action, it was held that he and his assigns were bound by the determination made therein that title to the premises in question was duly vested in Sarah Hart during her lifetime. It does not follow, however, that because the assignee was a party to that action he was a party to the judgment as rendered and entered, or that because he failed to answer the complaint he conclusively admitted all the facts alleged therein. If judgment had been entered against him by default, assuming that the court had jurisdiction, it would have been as conclusive, as to all facts properly alleged in the complaint, as if it had been rendered after issue joined, trial had and findings made. White v. Merritt, 7 N. Y., 352; Gates v. Preston, 41 id., 113; Newton v. Hook, 48 id., 676; Herman’s Estoppel & Res Ad judicata, § 50; Freeman on Judgments, § 330.

Ho judgment, however, was entered in that action, by default or otherwise, in favor of the plaintiff Sanders against the assignee, or any other defendant, nor in favor of any defendant against a co-defendant. The only judgment rendered was in favor of the defendants Hart, against the plaintiff Sanders, dismissing the complaint upon the merits, with costs, and affirmatively adjudging, that the proceedings in foreclosure were valid and vested a good title in Mrs. Hart. While a judgment may determine the ultimate rights of the parties on the same side, as between themselves, Code Civ. Pro., § 1204, the judgment in question did not purport to do so, but simply determined certain issues between the plaintiff in the action and the defendants Hart Heither in form nor effect did it determine the ultimate rights of those defendants and the assignee, as between themselves, nor could such a determination have been required by any defendant unless he had not only so demanded in his answer, but had also served a copy thereof upon the attorney of each defendant to be affected by the determination who had appeared, and personally upon each defendant so to b.e affected who had not appeared. Code Civ. Pro.,, § 521.

A judgment in favor of one defendant against another cannot be entered upon the default of the latter unless he has had notice and an opportunity to defend as against his co-defendant. Edwards v. Woodruff, 90 N. Y., 396; Albany City Savings Inst. v. Burdick, 87 id., 40.

A judgment against a plaintiff in favor of a defendant determines nothing between the latter and a co-defendant, because,, although both are parties to the action, they are not “ adversary parties,” as that phrase is applied to the subject of former adjudication. Herman on Estoppel, § 138.

Ho demand was made in any of the pleadings in the action brought by Sanders which called upon the assignee to assert his rights, or defend his title as against Hart, and no adjudication was made between the assignee and any party to the action. As to him the effect was the same as if no judgment had been entered, or as if he had not been made a party. We think, therefore,, that the judgment relied upon, although not pleaded, as a bar, is conclusive neither as a bar, nor as evidence against the plaintiff in this action, who is in privity with the assignee and bound only as he was bound.

It does not follow, however, that the judgment appealed from should be reversed, as the result may be right, even if some of the reasons given for declaring that result are wrong. Both parties claim title to the land involved through Joseph Hart. The plaintiff has all the interest therein which belonged to said Hart on the 6th of July, 1878, when his petition in bankruptcy was filed. That interest was subject to a mortgage, dated August 17, and recorded Hovember 27, 1876, which was subsequently foreclosed, and the defendants are in the position of purchasers in lawful possession under such foreclosure. The earlier title of the defendants must prevail over the later title of' the plaintiff, unless the former is defective. It is claimed that the mortgage was paid before the sale thereunder was made, and evidence was given from which the trial court could have found that such was the fact. The trial court, however, did not so find, and no reauest ■was made by the plaintiff for a finding upon the subject, and wo have held that 11 an omission to find facts claimed by the unsuccessful party to be warranted by the evidence can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code.” Travis v. Travis, 122 N. Y., 449, 454; 34 St. Rep., 42. We cannot look into the evidence for facts to reverse the judgment, except to see whether there is any evidence to support a finding, although we may to sustain it. Thomson v. Bank of British North America, 82 N. Y., 1; Burnap v. National Bank of Potsdam, 96 id., 125; Equitable Co-operative Fo. Co. v. Hersee, 103 id., 25; 3 St. Rep., 100.

The title of the defendants through the foreclosure of said mortgage is not questioned upon any ground except the one already mentioned, and as that must fail, owing to the practice pursued, we think that the conclusion of the trial court that Mrs. Hart acquired a good and paramount title through the foreclosure proceedings was correct and that it justified the dismissal of the complaint As the trial court based its action upon two independent grounds, one of which was right, the result was not affected by the fact that the other, as we have held, was wrong. The judgment appealed from should, therefore, be affirmed, with costs.

All concur.


author: Haight, J.

text:
    James H. Goodsell, Pl’ff, v. The Western Union Telegraph Co., Def't.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Contract—Parties to.
    Plaintiff made a contract with defendant’s predecessor for the transmission of news in behalf of an alleged association of which he claimed to be president, knowing that no such association existed. It was not incorporated and consisted of a fluctuating number of newspaper represen tatives who made contracts with plaintiff as to prices, and had no relations with each other. Held, that the defendant’s assignor was not defrauded or misled by the use of the name adopted by plaintiff and neither it nor its assignee can under the circumstances be permitted to avoid the contract by reason thereof.
    2. Same.
    By the contract if the news reports were transmitted to any greater number of places than “enumerated in schedule A.” the plaintiff was to pay a certain amount per word. There were 38 places so enumerated. Held, that the intention was that he might have the day report transmitted to 38 places, and the night report transmitted to 38 places, notwithstanding they might be different from the day places.
    3. Same.
    In December, 1881, Dr. Green, president of defendant, informed plaintiff the contract was nudum pactum, and that the company would increase the price for transmission of matter between certain points. Plaintiff disagreed with Green, who said he could give him time to consider. In January and February, Green urged making an arrangement but plaintiff declined and on March 11, Green wrote plaintiff that a different rate must be paid or the service would be discontinued. Plaintiff saw Green, claimed the contract was binding and plaintiff was then given time to consider the matter and see his customers. This was repeated later, but on June 20 he notified Green his customers were unwilling to pay the incrensod prices Said customers then organized the United Press Association for the purpose of supplying themselves with news. Held, that plaintiff by discontinuing his reports June 24 did not abandon his contract as it had been unqualifiedly repudiated by Green previous to that time, and defendant was liable for plaintiff’s loss of business in consequence of its conduct.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon the report of a referee.

      Hush Taggart, for app’lt; George W. Miller, for resp’t.

       Affirming 30 St. Rep., 794.

   Haight, J.

This action was brought to recover an alleged balance due upon a contract, and damages for a breach thereof.

The defense was that the contract was illegal and not made with the plaintiff; that there was nothing, due thereon, and that there had been no breach thereof by the defendant.'

The agreement was made and entered into on the 21st day of January, 1881, between the Atlantic & Pacific Telegraph Company, of the first part, and The National Associated Press, James H. Good-sell, president, party of the second part. By its provisions the National Associated Press undertook to furnish news to be transmitted by the Atlantic & Pacific Telegraph Company, and the telegraph company undertook to transmit the same to the points named in a schedule attached, and to such other points within the territory situate upon the lines of the company lying west of Portland, Me., and extending as far as Omahaj Neb., and lying north of Richmond, Va., and Nashville, Tenn., and south of Detroit, Mich., and Milwaukee, Wis., but including the places named, for the purpose of supplying the newspapers published within such territory taking the news reports of the National Associated Press. The regular service of the National Associated Press to be transmitted by the telegraph company was not to exceed on an average 6,750 words per day, one-third of which was to be transmitted in the day time and two-thirds thereof in the night time, between hours specifically designated. The contract further provided:

Fourth. For the transmission and delivery to newspapers and subscribers at all the points or places named in schedule ‘A’ hereunto annexed, or to the successors and assigns of such newspapers and of the subscribers of said news reports, the said National Associated Press shall pay the said telegraph company the sum of $5,000 per month on or before the 15th day of each and every month during the continuance of this agreement, which amount of $5,000 per month shall be in full payment for the transmission and delivery of an average of 6,750 words per day as hereinbefore specified. Provided, however, that in case the average of the entire number of words transmitted by said telegraph company in any month should exceed 6,750 per day the telegraph company shall receive an additional payment for said excess at the rate of one-half a cent a word for each circuit over which such excess of matter is sent. That it is also mutually covenanted and agreed that the said National Associated Press shall have the right to require the said telegraphic news service to be transmitted and delivered as aforesaid to newspapers or subscribers at any point or place within the territory and located upon the lines owned, operated, leased or controlled by said telegraph company upon the following conditions, namely: that in case the said news reports shall be transmitted by said telegraph company to any greater number of points or places than the number enumerated in schedule ‘A’ hereto annexed, the said telegraph company shall receive over and above the monthly payment hereinbefore provided for an additional payment computed at the rate of one-eighth of a cent per word for all matter transmitted to each place or point in excess of the whole number of points or places enumerated in schedule ‘A.,’ and it is also mutually covenanted and agreed that in case any of the points or places supplied with the news reports as aforesaid should at any time during the continuance of this agreement cease to take the news service of the said National Associated Press the telegraph company shall, if some other place be not substituted for the place at which such reports are discontinued, make an allowance or rebate from the said monthly charge of $5,000, at the rate of one-eighth of a cent per word per day for each and every place ceasing to take said news service. ■ Provided, however, that the entire payment of said telegraph company by said National Associated Press under this agreement shall not be less in any one month than at the rate of $50,000 per annum for the transmission and delivery of the aforesaid news reports to all places or points to which said news reports may be sent under this agreement”

The contract further provided that the collection of all moneys due or to accrue from papers or subscribers under the operation of the contract for news transmitted shall be made by the telegraph company for and on the account of the National Associated Press; that a full and detailed account of such collections shall be kept by the telegraph company, which account shall always be open to the inspection of the party of the second part, and that the same shall be furnished and rendered in due form by the telegraph company to the National Associated Press monthly. And payments of the balances, if any, due the National Associated Press by the telegraph company shall be made on or before the fifteenth day of each and every month. The agreement was to continue in force for the period of ten years from the first day of February, 1881.

Subsequently, and on or about the 3d day of February, 1881, the Atlantic & Pacific Telegraph Company sold, assigned and transferred to the Western Union Telegraph Company, the defendant in this action, all its telegraph lines, appurtenances, business, property rights and privileges, and the defendant undertook and assumed performance of all the valid contracts of the Atlantic & Pacific Telegraph Company, including the contract in question, and on or about the 1st day of March, 1881, proceeded to the performance thereof.

As we have seen, the first defense is that the contract was illegal and not with the plaintiff. It appears that there formerly existed an association known as The American Associated Press, and that it was engaged in supplying papers with news transmitted over the wires of the Atlantic & Pacific Telegraph Com: pony; that such association ceased to exist, and thereupon the telegraph company commenced the collection and transmission of news to newspapers on its own account, and for the purpose of enabling it to carry on the business the plaintiff was employed, and a bureau or department for the business was organized and given the name of “ The National Associated Press, James H. Groodsell, President” The business was carried on in this manner for several years and until the contract in question was made. The contract was made with Groodsell, but in the name which had formerly been adopted and under which the business was known to the public, which fact Was well known and understood by the officers of the Atlantic & Pacific Telegraph Company. That company consequently was not defrauded or misled by the use of the name adopted by the plaintiff, and neither it nor its assignee can, under these circumstances, be permitted to avoid the contract by reason thereof.

The referee has found as facts that the collections made by the defendant for the plaintiff under the contract amounted in the aggregate to the sum of $157,800; that the telegraphic services rendered by the defendant to the plaintiff from the 3d of February, 1881, to the 22d of June, 1882, under the terms and conditions of the contract amounted to the sum of $78,500 for what is named as the regular service, and the sum of $16,772.58 for additional or extra service in excess of 6,750 words per day, as provided in the fourth clause of the contract, amounting to the sum of $95,272.58, which the defendant was authorized to retain from the collections made; that it had paid to the plaintiff the sum of $45,750, leaving a balance due and owing him of $16,777.42.

As to the amounts collected by the defendant, and paid over to the plaintiff, there is no dispute. The contention arises upon the amount that should be allowed to the defendant for extra services rendered under the fourth clause of the contract. As we have seen, the amount so allowed by the referee was $16,772.58. The items composing such amount are not stated by him, but they are stated in the opinion of the general term as follows:

Schedule “ Z.”................................. $6,387 48
Schedule “Z 1-2.”.............................. 4,863 37
Schedule “X,” (two items showing special arrangements, Lawrence)............................. 630 00
Auburn “ Despatch.”............................ 390 00
Schedule “X 1-2,” (special arrangement, Auburn) ... 120 00
Schedule “ Y,” less far western circuit............. 4,313 28
Schedule “ Y 1-2,” less far western circuit.......... 68 45
Total.....................................$16,772 58

Schedule “Z ” is for messages received at New York by the plaintiff, marked “ collect,” from places not on the schedule; and “ Z 1-2 ” is for miscellaneous bills about which there is no controversy. Schedules “ Y ” and “ Y 1-2 ” give the excess of words transmitted over and above the 6,750 provided for in the contract for the eastern, western, far western, southern and state circuits. Under the provisions of the contract the plaintiff was to pay one-half a cent for each word of such excess for each circuit over which the same was sent The only controversy over these schedules arises out of the including of the fifth or far western circuit, the contention being that there were only four circuits. It appears from the evidence that an arrangement was made with the plaintiff by which two additional operators should be hired at Pittsburgh, one for night and the other for day service, to repeat the despatches to the far western towns, and that he was charged therefor in schedule “Z 1-2 ” $1,345.55. It is claimed that this arrangement took the place of the far western circuit, and that consequently he should not be charged for the excess of words sent over that circuit. The general term appears to have adopted that view. The amount for the transmission of the excess over that circuit, as we figure it, amounts to $1,186.21, a sum less than the plaintiff paid for the two repeaters at Pittsburgh. It would hardly seem right that the plaintiff should be required to pay the defendant for the regular service, and the excess provided for under the contract, and still pay the defendant for its operators, and we are consequently inclined to the view that the employment of the repeaters at Pittsburgh was understood to be in lieu of the additional compensation for the far western circuit

The chief contention arises over schedules “ X ” and “ X 1-2.” They contain a statement showing the number of words transmitted to places not included in schedule “A” attached to the contract. It is claimed that the defendant under the provisions of the contract is entitled to one-eighth of a cent" per word for the number of words transmitted to the places therein named. As to the Lawrence “ Eagle ” which was supplied with the reports for seven months under a special arrangement of ninety dollars per month, making a total of $630 ; and the Auburn “Despatch," which was furnished under a special rate of ten dollars per week, making $390 and $120, there appears to be no controversy. Those items'were therefore properly allowed. The plaintiff, however, claims that as to the other places named in these schedules, they were substituted for other places named in schedule “A” which did not take the reports, and that therefore he should not be charged for the transmission of the reports to these places. This involves the construction of the fourth provision of the contract. As we have seen, it provides “ that in case the said news reports shall be transmitted by said telegraph company to any greater number of points or places than the number enumerated in schedule ‘A’ hereto annexed, the said telegraph company shall receive over and above the monthly payment hereinbefore provided for an additional payment computed at the rate of one-eighth of a cent per word for all matter transmitted to each place or point in excess of the whole number of points or places enumerated in schedule ‘A.’ ” There are thirty-eight places enumerated in schedule A,” but all of them did not take the reports. The right of the plaintiff to substitute other places upon the company’s lines within the territory named for the places enumerated in schedule “A,” not taking the reports, is not questioned, but the plaintiff claims that he has the right to have both the day and the night repoi’t transmitted to thirty-eight places under the regular service oí $5,000 per month. In other words, that he may have the day report transmitted to thirty-eight different places, and that he may have the night reports also transmitted to thirty-eight places, notwithstanding that they may be different from the places to which the day report is transmitted.

This claim is controverted, and it presents the serious question for our consideration. It is one in which the minds of the parties may honestly differ, and is not free from difficulty. The amount claimed under these schedules, deducting the items allowed, is $13,225.60. Only fifteen or sixteen of the places enumerated in schedule “ A ” took the report, both day and night. At no time were there thirty-eight places that received the day report, or thirty-eight that received the night report. It ran from twenty-five to thirty that received the day report, and from twenty-nine to thirty-seven that received the night report. Under the contract but one-third of the daily report could be transmitted in the day time. The other two-thirds had to be transmitted at night. Under the construction claimed by the defendant, the plaintiff would have to pay for all places taking the day report only as much as he would where they took both the day and the night report, although the matter transmitted was but one-third in amount of that which he had the right to have under the contract. It is not shown that the expenses of such transmission would be increased by a change of the places in which the messages should be dropped, provided the number of drops are not increased, and it is therefore not apparent that the defendant will suffer if the construction contended for by the plaintiff is sustained. By adopting it he is given the benefit of his contract, of having 6,750 words per day transmitted with thirty-eight drops, for the monthly allowance agreed upon; whilst under the other construction he must necessarily be deprived of the full benefit of his contract unless he can find thirty-eight places which will take both the day and the night report. But if plaintiff’s construction should not be adopted, it would then follow that he would be entitled to a rebate from the monthly charge of $5,000.00. The contract provides, “ That in case any of the points or places supplied with the news reports as aforesaid should at any time during the continuance of this agreement cease to take the news service of the said National Associated Press, the Telegraph Company shall, if some other place be not substituted for the place at which said reports are discontinued, make an allowance or rebate from the said monthly charge of $5,000.00 at the rate of one-eighth of a cent per word per day for each and every place ceasing to take said news service.”

It was provided, however, that such rebate should not exceed $10,000 per year, which in this case would amount to about $13,000, and thus equal the excess claimed by the defendant. To avoid this result it is claimed that there should be taken out of schedules 11X ” and X 1-2 ” enough places and added to the places enumerated in schedule “A” to make the night service up to thirty-eight in number, and that the defendant should be allowed the extra compensation for serving the other places named in the schedules, amounting to the sum of $9,475.10. But wo do not understand that the contract requires the plaintiff to do this. Inasmuch as the day service to these places contains but one-third of the number of words, he may prefer to pay the one-eighth of a cent per word for the service and then have his rebate upon the monthly payments. Whilst the question may be upon the border, we are inclined to the opinion that the contract should receive the construction indicated, and that the amounts claimed under these schedules, except as to the amounts already included, should be disallowed.

The appellant also claims that it should have been allowed the item of $11,934.48, for messages received at Hew York from the places named in schedule “A.” As we understand, these messages were items of news gathered at places named and transmitted to Hew York for publication. An allowance of one-half a cent per word on such messages has already been- made in schedule “Z,” which is all that we understand the defendant to be entitled to under the provisions of the contract.

It follows that the findings of the referee as to the amount due and owing to the plaintiff under the contract should be sustained.

The referee has found that the defendant committed a breach of the contract, and awarded the plaintiff $30,000 as damages therefor. The breaches found were that the plaintiff requested the defendant to deliver telegraphic news reports to various papers within the territory and on the lines described in the contract, and that the defendant failed, neglected and refused to do so; that it also failed to render him an account and pay over the balance on hand on or before the fifteenth day of each month; and that it abandoned the contract, and refused to carry out its provisions, or transmit the plaintiff’s reports.

The first conversation to which our attention is called as bearing upon the refusal of the company to continue the performance of the contract occurred in the month of December, 1881, between the plaintiff and Dr. Green, the president of the defendant. The plaintiff testified that the doctor informed him that a question had arisen in regard to the prices charged for the.transmission of the plaintiff’s news; that the relations between the Western Union Company and the Hew York Associated Press had become strained, the press taking the ground that the defendant company was discriminating in plaintiff’s favor, giving rates largely below the rates charged the Hew York Associated Press; that this was an embarrassing position for the Telegraph Company; that he had taken legal advice upon the subject, and that so far as he could see the plaintiff’s contract was not obligatory upon the company; that it was a nudum pactum. Then followed the submission of a proposition for an increased price for the transmission of matter between Washington and Hew York, and foi; improved facilities elsewhere, and an extension of territory. The plaintiff replied to the effect that he could not accept the doctor’s views as to the contract; that he desired to carry on his business; that it was increasing and profitable, but that he would be willing to do anything that he could without waiving the obligations of the contract to meet their wishes in respect to the making of a supplementary contract, provided he could figure on an extension of territory. Doctor Green then replied that he would give the plaintiff plenty of time; that the company did not desire to act precipitately, but that he wished him to fully consider the subject. The next conversation, as he states, occurred in January, 1882, at which time the plaintiff asked for a schedule of prices paid by other associations, and what they proposed to charge him, in order that he might figure upon those prices and see whether he could afford to consent to pay them, and was informed by Dr. Green that he had received a further letter from the New York Associated Press taking a more peremptory position in regard to the matter, and that the matter of making an amicable arrangement had become more urgent than it seemed'to be on the occasion of their first conversation. They again met on or about the first of February, and on that occasion the plaintiff was informed that the executive committee of the Western Union Company had decided to enforce uniform rates upon all press associations, charging all proprietors of press service and all press associations the same scale of prices for the same kind of business, and that the arrangement which he had at first proposed about the modification of the plaintiff’s contract in respect to matter between Washington and New York could not be carried out. Thereupon the plaintiff protested and told Dr. Green that he should not consent to any modification of the contract; that he stood upon it and wished it carried out as it was written. Subsequently and on the 11th day of March, he received the following letter:

“Western Union Telegraph Company,
“Norvin Green, President.
“New York, March 11, 1882.
“ James H. Goodsell, Esq.,
“ Dear sir.—When the office of the Atlantic & Pacific Telegraph Company was closed a little more than a year ago, this company took over a press service for you to certain papers taking your news reports, which we have continued to perform at substantially the same rate it was being done for you by that company. As the rates for this service are absolutely below the cost to this company of performing it, to say nothing of remuneration for the use of its wires, and besides operating a great injustice to other press customers, I was directed some weeks ago, by the proper committee of the board of directors of this company, to notify you, which I did verbally, that the services cannot be continued unless a very material increase of compensation therefor was paid or secured to this company.
“ On the 25th of January our executive committee adopted a resolution that the same rates should be charged all patrons for press reports of like character and between the same places. Of this resolution you were informally advised and expressed your readiness to pay the same rate proportionately to the amount of .service charged to other associations. You had previously and two months ago at least agreed with me verbally that you would pay the same rate for reports from Washington and drops thereof as was or should be paid by the New York Associated Press. These assurances however have not solved the whole question, ■and slow progress has been made towards reaching a distinct understanding of what you shall pay. I am therefore directed by the said committee to whom this subject was referred, to say to you that from and after this date you will be charged for the transmission of your press reports the same rate as that charged for other combination press reports in the respective territories in which said reports are handled under existing agreements, and that unless such rate is paid or secured to be paid to this company the services will be discontinued.
“ The committee feel that you cannot regard this a short notice, since our free discussion of the subject for three months past has given you ample notice that it was our purpose and intention to increase the rates for your reports to that paid us by other customers for like service, and the committee feel that a decisive step in this direction has been already too long postponed “ Very respectfully jours,
“ (Signed) Norvin Green, President.”

Thereupon the plaintiff saw Dr. Green and informed him of the receipt of the letter, and stated that he could not accept the proposition therein contained, that he should pay any substantial increase of price over that named in the contract; that the contract was binding on the company and himself; that he had carried it out and proposed to continue to carry it out in the future if possible. That thereupon Dr. Green replied stating that the •contract could not be considered any longer; that he must then inform the plaintiff finally that the contract was repudiated by the company; that they would not perform any more services under the contract, but that if the plaintiff wished to carry on his business under a new contract in accordance with the terms and conditions outlined in the letter they would give him time to see what sort of an arrangement he could make with his customers, and to see whether he could pay the rates which they wished to charge. That thereafter, and on the 24th day of March, 1882, the plaintiff received another letter from Dr. Green, which contained a proposition for the transmission of his reports upon the new terms therein specified. Thereafter they again met, and the plaintiff asked if that was the final action of the company. The doctor replied that it was. That he then told the doctor that he could not consent to accept the terms contained in *the letter; that he was prepared to carry out the contract. The doctor replied that he had previously informed him that the contract had been repudiated by the company; that if it ever existed at all, it had been abrogated; that he could not discuss with him that contract; that he was prepared to discuss with him the •carrying on of the business under a new contract, the terms of which had been outlined in the letter of March 24th. Other conversations were testified to with other officers of the company of substantially the same import. It appears that Dr. Green gave the plaintiff time to communicate with his customers to enable him to see what arrangements he could make with them in reference to a continuance of the service. This the plaintiff did, but he was unable to make any arrangement with them under which he could accept the proposition outlined in the letters referred to. Thereupon, and on the 20th day of June thereafter, he notified the doctor that the papers taking his reports were unwilling to pay the increased price demanded, and he then delivered to the-doctor a notice to the effect that he did not waive his claims under the contract; that he was ready and willing to carry it out, and demanded that it should be carried out on the part of the defendant. It further appears that the communication of the-plaintiff with his customers asking for increased rates resulted in their calling a meeting in which his difficulties with the defendant were fully disclosed and discussed, and that thereupon his customers organized a corporation under the name of The United Press Association, for the purpose of supplying their papers with the news of the day. The plaintiff thus finding himself deprived of his business, on the 24th day of June stopped the delivery of his reports to the defendant for transmission, and thereafter transferred his business to the new company so organized for the sum of $3,000.

It is now claimed that because the plaintiff discontinued his-reports on the 24th day of June, that he himself abandoned the contract, and is therefore not entitled to damages, but we are not willing to adopt this view. President Green, by his letter of March 11th, as well as by his subsequent conversations with the-plaintiff, unqualifiedly repudiated the contract and notified the-plaintiff that from that date he should be charged for his reports the increased prices demanded, and at no time afterwards did he recede from this position. He only gave the plaintiff time to-communicate with his customers and see whether he could make arrangements for the payment of the rates demanded. When, therefore, he had failed to make new terms with his customers by which he could accept the new proposition of President Green and had notified him of such failure, the extension of time must be deemed at an end, and the position of the parties the same as if such extension had not been given. If the plaintiff on the receipt of the letter of March 11th, in which President Green notified him that the contract was repudiated by the company, and that thereafter he should be charged the increased prices- for the matter transmitted, had stopped delivering to the company his reports for transmission, there could be no doubt but that the company would be held to have committed a breach of the contract and the plaintiff justified in so treating it by stopping his-reports. It appeal’s to us that he must be regarded as occupying" the same position after the expiration of the time given him to determine whether he could make new arrangements with the papers; that had previously taken his reports.

Entertaining these views, a discussion of the question arising •out of the plaintiff’s loss of business in consequence of the conduct of the defendant, as well as other questions upon which the referee has also found the defendant liable for a breach of the contract, does not appear to be necessary.

Questions involving the weight of evidence were properly considered in the general term. This court can only review the exceptions. Exceptions to findings of fact are well taken if there is no evidence to sustain them. Code of Civil Procedure, §§ 992, 993 ; Healy v. Clark, 120 N. Y., 642; 30 St. Rep., 897.

Many of the facts were found upon a conflict in the evidence. In our review we have only called attention to that portion of the «evidence which tends to sustain the findings.

We do not understand that it is claimed, that the allowance of $30,000 as damages for such breach is unreasonable or excessive.

The judgment should be affirmed, with costs to the plaintiff.

All concur.


author: Parker, J.

text:
    Mary Culross, App’lt, v. Arthur J. Gibbons et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Trust—Validity.
    Plaintiff’s husband, in 1876, fearing that he would1 squander his property, deeded certain real estate through a third party to his wife, site to defendant, and the latter gave an instrument in which he declared that he held the premises in trust (1) for the support of the plaintiff during life; (2) in case of her death for her husband’s support; (3) after their deaths to divide between their children, (4) with right to mortgage or otherwise dispose of the premises for the benefit of the trust. Si 1887, upon defendant’s petition, the court relieved him from the trust and directed that he should not interfere further with the same, and appointed Crooks in his place as trustee. In this action to have the trust cancelled and the property restored to plaintiff, Held, that as the trust for the benefit of the husband and wife is conceded to be valid, it is not necessary to consider the other two, as it can be upheld without doing injustice to the intention of the creator of the trusts.
    8. Same.
    The several instruments by which the transfer of title was effected were drawn pursuant to the direction of James R. Culross, and were intended by the several parties thereto as one transaction, for the purpose of transferring the title from him to Gibbons.
    3. Same—Res adjudicata.
    Gibbons, the trustee, purchased certain real estate in Ambrose street, paying a part of the consideration from the surplus income, giving mortgages and taking title in his own name, but executing an instrument so as to enlarge the trust and bring this property within it. Upon petition his accounts .including said property were settled and adjusted, all persons interested being made parties to the proceedings, and all appearing and consenting to the order parsing his accounts, which relieved him of his trust and directed him “ not to interfere further with the same or either of them.” Held, that this was a determination that he held the Ambrose street property as well as the other, and that the provisions of the order indicates that it was a subject of consideration. And while the order stands unreversed, actions cannot be brought by the parties interested to determine matters which should have been passed upon.
    Appeal from a judgment of the general term of the supreme court, fifth judicial department, entered on an order affirming a judgment of the supreme court, entered upon the report of Hon. James C. Smith, referee, dismissing the complaint, with costs.

      Eugene Van Voorhis, for app’lt; George F. Yeoman, for resp’ts.

       Affirming 28 St. Rep., 985.

   Parker, J.

By this suit in equity it was sought to compel the defendant Arthur J. Gibbons, to convey to the plaintiff certain real estate, the legal estate of which was vested in him under the following circumstances:

Prior to the 13th of December, 1876, James E. Culross, the husband of the plaintiff, was the owner of the major portion of such real estate, and by deed of that date, in which his wife joined, he quit-claimed it to Thomas P. O’Kelley, an attorney at law; O’Kelley quit-claimed the same premises to the plaintiff, by deed dated the 14th of the same month; the plaintiff by deed of the same date quit-claimed such premises to the defendant, Arthur J. Gibbons: and Gibbons executed an instrument in writing, bearing date the 15th of the same month, in which it was declared that he held said premises upon certain trusts therein expressed.

These several instruments were drafted by O’Kelley; subscribed at his office; acknowledged on the 15th day of December, 1876, and recorded in the proper county clerk’s office at the same minute of time. At the time of the execution of these instruments, James E. Culross had a family, consisting of his wife and several children, among whom was his daughter Minnie, then, as now, the-wife of the defendant Gibbons.

Culross had become so irregular in his habits as to excite apprehension in the minds of several of the members of his family that he might squander his property, which was then of the value-of about $40,000. These apprehensions were made known to-Mr. Culross, to whom a wish was also expressed that he make-some disposition of his property, to the end that it might be saved from waste. He readily acquiesced in the suggestion, and the result was the execution of the instrument already referred to.

In the declaration executed by Gibbons it was declared that beheld the premises in trust, the terms of which may be briefly stated, as follows: (1) To collect the rents and profits of the real estate, and after payment of taxes,' insurance and other liens,, apply the balance to the support and maintenance of the plaintiff during her life. (2) In the event of her death before that of her husband, to apply such balance for his benefit during life. (3)/ After their deaths, and after paying all liens and incumbrances on the property, to divide the premises, or the avails thereof,, within eighteen months, equally between their, children; the descendants of any deceased child to take his or her share. (4) Eeserving to the trustee power to mortgage or otherwise dispose of' the premises for the benefit of the trust.

Immediately after the execution of the instrument drawn by O’Kelley, Gibbons took charge of the real estate and cared for the financial affairs of the business in which Mr. Culross was-engaged.

September 1, 1884, Gibbons purchased certain real estate ore ’ Ambrose street in the city of Eochester, paying a part of the consideration from the surplus income and executing mortgages upon such property for the remainder. The title he took m his own name, and on the same day executed an instrument in writing, purporting to enlarge the trust created December 15, 1876, so as to bring such property within it, and this instrument was also executed by the plaintiff and eacli of her children, except David , J. Culross. Thereafter Gibbons managed the Ambrose property as he did the property first conveyed to him.

Subsequently, and on the 8th of June, 1887, pursuant to a petition presented by Gibbons, all the parties to this action and the sons of the plaintiff (who have since assigned their interests to her) consenting, the court made an order declaring the allegations in the petition to be true; settling his accounts as trustee; removing him and relieving him from the trusts, and directing that he should not interfere further with the same, or either of them. On the same day, and on the application of the plaintiff, the court by an order duly made appointed Alexander B. Crooks “ trustee of all the real estate described in said petition, with all the powers and duties contained in a certain declaration of trusts dated on the 15th day of December, 1876.”

It will be observed that as a result of the orders of June 8th, Crooks became trustee in the place of Gibbons, removed, but the legal estate remained in him, and he was enjoined from further interference.

As we have already remarked, the plaintiff seeks to have any trust that may have been created cancelled, and the property restored to her. She assigns in support of her position the following grounds: (1) That the deed from her to Gibbons was fraudulently procured. (2) If it be otherwise determined then that the trusts sought to be created are invalid (3) If valid then the trusts having been created by the plaintiff, and being voluntary, may be revoked, because the grantor did not understand that she was putting the property beyond her control.

Her contention with reference to the Ambrose street property purchased subsequently rests on somewhat different grounds, and will be considered later.

As to the first ground, it is sufficient to say that the learned referee found as a fact, that the plaintiff acted understandingly and freely, and that no fraud, deception, undue influence, or abuse of confidence was practiced upon her.

As to the second ground, it is apparent that an attempt was made to create a trust, providing for the collection of the rents and profits of the real estate, and their application in payment of insurance, taxes, and other charges on the property, and to use the remainder in the support and maintenance of the- plaintiff during her life, and for the benefit of her husband after her death.

(2) To divide the premises or the avails thereof among the issue of plaintiff, after her death and that of her husband.

(3) To mortgage the property, or dispose of it, if it should appear for the benefit of the trust

The trust first mentioned is conceded to be valid, and whether the other two attempted trusts, while invalid as trusts, may be valid as powers in trust, and employed as- aids to the execution of the valid trusts, as contended by one- side, and denied by the other, need not be considered, for they are so easily separable from the valid trust that it may be upheld without doing injustice to the intention of the creator of the trusts.

Indeed it would be in furtherance of the trust maker’s general scheme to do. so, should the latter two be held illegal and the court would so decree. Underwood v. Curtis, 127 N. Y., 523; 40 St. Rep., 255.

The third ground is based on the assumption that the plaintiff was the creator of the trusts, and if that assumption could be allowed, the appellant would in this court be confronted with the difficulty that the record contains a finding of fact, controlling here, that the plaintiff acted understandingly.

But the learned referee was of the opinion, and he found the fact to be, that the several instruments by which the transfer of title was effected including the declaration of trust were drawn pursuant to the direction of James R. Oulross, and were intended by the several parties thereto as one transaction, for the purpose of transferring the title from Oulross to Gibbons in trust, O’Kelley and the 'plaintiff being mere instruments of conveyance. The reasoning of the learned referee in support of the conclusion reached, is satisfactory, and so fully presented in his opinion as to render further discussion on that point wholly unnecessary.

There is yet another ground which requires an affirmance of the judgment dismissing the complaint, and it is alike applicable to the original transaction, and to the matter of the Ambrose street premises, which the plaintiff contends was purchased with the income belonging to her, and therefore equitably her property.

By statute it is provided that, “ Upon the petition of any trustee, the court, of chancery may accept his resignation and discharge him from the trust, under such regulations as shall be established by the court for that purpose, and upon such term's .as the rights and interests of the persons interested in the execution of the trust may require.” Birdseve’s Statutes, vol. 3, p. 3180, § 25.

An order made upon petition authorized by statute is conclusive as to the parties before the court, and can only be reviewed upon appeal. Livingston's petition, 34 N. Y., 555.

Under this statute, the court had power to pass the accounts of the trustee, and to impose such terms as the interests of the parties required as a condition of relieving the trustee from a further execution of the trust. x

Kecessarily it could have required him to convey the real estate to the newly appointed trustee, if it was deemed for the best interest of the parties that it should be done.

It is a well established rule, that where a matter has been submitted to an authorized judicial tribunal, its decision thereon is final between the parties until it has been reversed, set aside, or vacated; and the rule of res adjudícala applies to all judicial determinations, whether made in actions or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination. People v. Barnes, 114 N. Y., 317; 22 St. Rep., 164; 23 id., 795; Leavitt v. Wolcott, 95 N.Y., 212; People v. Hall, 80 id., 117: Demarest v. Darg, 32 id., 281; Sibley v. Waffle, 16 id., 180; Supervisors v. Briggs, 2 Denio, 33.

Gibbons, in his petition to the court praying that his accounts be settled and adjusted, and he be relieved from the further execution of the trust, alleged the original declaration of trust, and its provisions; the subsequent purchase of the Ambrose street property, and its terms; the enlargement of the original trust so as to include that property, and an account of his receipts and disbursements as such trustee.

Every person interested in the estate including the plaintiff were made parties to that proceeding. They all appeared, and consented to the order made, which determined the allegations in the petition to be true; passed the accounts of the trustee as stated by him; relieved him from the trusts and each of them; and directed him “ not to interfere further with the same or either of them.” The order thus made was necessarily a determination that Gibbons held the Ambrose street property, as well as the other real estate, in trust, and he was allowed in his accounts what he had paid for it out of the income of the property.

On the making of this order, the occasion was properly presented for determining whether Gibbons should retain title to the real estate, or convey it to his successor, who was appointed on the same day. And the provision directing Gibbons “ not to interfere further with said trust,” indicates that it was a subject of consideration, otherwise such direction was without a purpose.

If that question was not raised or passed on, the proper practice was to present a petition to the court as in that proceeding for a modification of the order. But, while the order stands unreversed, actions cannot be brought by the several parties interested, to procure determinations to which they may deem themselves entitled as to matters which should have been and may have been passed upon.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.