text:
    Mary Egan, as Administratrix, etc., Resp’t, v. New Jersey Steamboat Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Carriers — Explosives.
    Illuminating gas, compressed into steel cylinders of insufficient strength to hold it, though liable to explode by its tendency to expand when heated, is not within section 4472, U. S. Revised Statutes.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W.P. & R. K. Prentice (H. Reilly and W. P. Prentice, of counsel), for app’lt; Martin & Kelley (Olin A. Martin, of counsel), for resp’t.
   Putnam, J.

The learned trial justice in his charge instructed the jury that the plaintiff could not recover unless defendant, in carrying as freight the cylinders containing oxygen and hydrogen, by the explosion of one of which plaintiff’s intestate was killed, bad negligently and knowingly violated the statute of the United States, which provides that 11 no loose hay, loose cotton, or loose hemp, camphene, nitroglycerine, naphtha, benzine, benzole, coal ■oil, crude or refined petroleum, or other like explosive, burning fluids, or like dangerous articles, shall be carried as freight or used as storage on any steamer carrying passengers.” Rev. tit. U. S. ■§ 4472. The learned justice was in doubt whether the question involved was one of law, to be passed upon by the court, or of fact; but concluded to submit the case to the jury. After a careful examination of the evidence (which we do not "deem it necessary to discuss) we are of opinion that it did not justify the submission of the case to the jury. The statute above quoted, it will be observed, prohibited the carrying of loose hay, cotton, hemp, camphene, nitroglycerine, naphtha, benzine, benzole, coal oil, crude or refined petroleum, or other like explosive, burning fluids, or like dangerous articles. Assuming that the statute in question applied to steamers like defendant’s, running between two cities in the sanie state, plaintiff was not entitled to recover unless the evidence established the fact that the cylinders containing oxygen and hydrogen were within the prohibition of the statute, and hence that oxygen and hydrogen could be deemed “other like explosive, burning fluids, or like dangerous articles,"’ within the meaning of the law. It will be seen that all of the articles specifically mentioned therein are dangerously inflammable or explosive in themselves. We think plaintiff failed to show that oxygen and hydrogen were like explosive, burning fluids or like dangerous articles to those mentioned in the statute. They are not in themselves explosive or dangerous. The witness Mason, called by the plaintiff, testified as follows:

“ Oxygen and hydrogen by itself is not, in the ordinary parlance, any more explosive than compressed air. All these other things which I have mentioned, — benzole, benzine, naphtha, and refined petroleum, — give off a vapor. Some — I should judge most — of the danger I have described comes from that. * * * Any package of oxygen or hydrogen, at low pressure, might be carried anywhere. There is nothing to indicate that there is anything dangerous about it. A low pressure cylinder, itself sufficiently low, is as harmless as the siphons of seltzer water. As a fact, we have a number of experiments where glass vessels containing compressed air or containing seltzer water, carbonated water, have exploded, and the glass has flown to a great distance. I suppose every reading man. has a number of such instances within his knowledge. The danger is from the pressure, and of the pressure you can tell nothing by the outside of the vessel.”

The evidence indicated that the accident to plaintiff’s intestate occurred through the explosion of one of the cylinders containing hydrogen or illuminating gas. While hydrogen will burn, the -evidence failed to show that it was dangerously inflammable, or explosive, like the articles specifically mentioned in the statute. As the witness above quoted said, oxygen and hydrogen, by themselves, are not, in the ordinary parlance, any more explosive than compressed air. IE properly packed, they can be carried without danger. The accident in this case occurred, not on account of the dangerous and imflammable character of the gas, but on account of its being placed in a deiective cylinder, or of the cylinder being overcharged. The same accident might have occurred if the cylinder had been filled with compressed air.

We have been furnished with a copy of an oral opinion delivered by Lyndon, J., on the trial of an action brought by another party inj ured by the accident which caused the death of Egan, which we think, states the correct doctrine applicable to this case. The learned justice referring to the testimony of the witness whose evidence is quoted above, said:

“We have seen from the evidence of the professor in what manner camphene, and nitroglycerine, and benzine, and benzole, and naphtha, and the other articles are dangerous articles. They are. dangerous, of course, in consequence of their inflammability. The article we are dealing with is illuminating gas, and that gas, as I have already remarked, is not per se dangerous. Taking the testimony of the professor, the gas is not dangerous in the sense any of these articles are dangerous. The danger does not arise from the article itself, but from the use to which the article is putr namely, the cylinder is not strong enough to hold it. It is the danger that arises from overcrowding the cylinder beyond its strength. Is that danger like the danger which arises from any of the other articles ? The danger does not arise from any of these articles, as I understand it, in consequence of the weakness of the vessel which contains them, or the overcrowding them or overpressing them into that vessel. The danger arises in consequence of the element of danger which inheres in the very nature of the composition itself. Here the element of danger does not inhere in the elements of the article itself, so that the danger that exists here is not in the article, but in the improper overcharging of the cylinder which contains the article, and that was the act of the Oxygen Company.”

We concur in the views of Justice Landon, above quoted, and think it unnecessary to add anything further to what he has so clearly and ably expressed.

The cylinders in question were shipped with defendant as oxygen. The evidence of the witness Mason established the fact that oxygen was not inflammable, or more explosive than compressed air. Hence we think there was a failure to show what the learned trial judge correctly held was necessary to be proved to entitle the plaintiff to recover, — a knowing and intentional violation of the statute by defendant. Shipping the cylinders as oxygen was not notice to defendant that they contained a dangerous substance or article it was prohibited from carrying by the provisions of the statute in question. The views above suggested will render it unnecessary to discuss the various other questions in the case. The judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Abram Meddaugh, Resp’t, v. New York, Ontario and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Negligence — Contbibutoby—Question of fact.
    The evidence, in this case, was held to raise a question of fact as to the contributory negligence of the deceased, to be properly submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      George H. Carpenter, for app’lt; William W. Smith (T. F. Bush of counsel), for resp’t.
   Putnam, J.

This case is a close one, but I am inclined to think that the trial judge properly submitted the question of contributory negligence to the jury. As the deceased approached the railroad crossing, his view to the east was cut off by the Wilkinson store, twenty-eight feet wide and seventy feet deep, and only seven feet from the track. He was sitting on the rear end o£ the wagon, eighteen or twenty feet from the head of the horses. When the horses went on to the railroad track he was prevented from looking to the east by the store. He could not look down the track until he was twelve feet from it, and when his horses must have crossed. As the witness Leroy testified:

“ At the time Meddaugh drove on the track he could not have seen this engine if he had looked. I think that as soon as it was possible for him to see the engine he made actions to get off. He looked around as soon as he could see. * * * In going from where he stopped to wait for this freight engine he did not have any opportunity to see the railroad until he got down to Wilkinson’s store, and then could not see it except beyond the switch. If the train was behind the store, or between the switch and the store, he could not see it looking through there.”

I think this evidence raised a question of fact as to the contributory negligence of deceased that was properly submitted to the jury. Cook v. Railroad Co., 35 St. Rep. 525 ; Id., 128 N. Y. 635. I am therefore in favor of affirming the judgment.

All concur.


author: Per Curiam.

text:
    The People, Resp’t, v. Thomas Maxwell, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Appeal — Criminal law
    A judgment ol conviction, in a criminal action, will be reversed on appeal, where the circumstances, though strongly suspicious, do not exclude every hypothesis except the guilt of defendant.
    Appeal from a judgment of conviction for burglary.

      George M. Albot, for app’lt; Leonard F. Fish, Dist. Atty., for the Peoole.
   Per Curiam.

This judgment should be reversed. The cir, cumstances are strongly suspicious, but are not sufficient to war, rant conviction. They do not exclude every hypothesis except the guilt of defendant.

Judgment of conviction reversed.


author: Hardin, P. J.

text:
    Angeline Frier, Resp’t, v. President, Managers and Company of the Delaware and Hudson Canal Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Negligence — Fires—Railroads.
    In an action against a railroad company for damages sustained in the loss of fence occasioned by fire communicating from the premises of the company to those of plaintiff, it is incumbent upon the plaintiff to establish negligence on the part of the company in causing the fire on its own premises.

      2. Evidence — Railroads.
    Evidence, in an action for damages caused by fire alleged to have escaped from a locomotive, that the grade of the road at the plabe of the Are is steep, that engines drawing trains up this grade are obliged to labor hard, and that on account of such labor the engines emit more sparks is material, and its exclusion error.
    Appeal from a judgment of the county court, affirming a judgment of the justice’s court rendered in favor of plaintiff.

      George F. Lyon and H. D. Hinman, for app’lt; James P. Callan and A. Balcock, for resp’t.
   Hardin, P. J.

Assuming that the evidence sufficiently shows that the damages sustained by the plaintiff in the loss of her fence were occasioned by the fire communicating from the premises of the defendant to the premises of the plaintiff, according to the doctrine laid down in Webb v. Railroad Co., 49 N. Y. 420, it was incumbent upon the plaintiff to give evidence to establish the allegation of the complaint that the defendant had been guilty of negligence in causing the fire upon its own premises. In the Webb Case it was said there was abundant evidence to require the submission to the jury of the question relating to the defendant’s negligence upon its own premises; and it was therefore held in that case that, where the fire spread to the immediate adjacent premises of the plaintiff, the defendant was liable for the damages caused thereby. This brings us to the inquiry as to whether the evidence given at the trial was sufficient to warrant the jury in finding negligence on the part of the defendant in causing the fire which spread from its premises to the plaintiff’s. The evidence fails to indicate any particular engine of the defendant which ignited the material upon the defendant’s premises. The defendant had a right to operate its railroad by means of engines traversing its tracks, and was only required to use reasonable care and prudence in the operation of the same; and it was incumbent upon the plaintiff to establish by evidence, that in its operation of its engines it had failed to exercise such care and prudence.

The witness Smith testified that, when passing near the railroad he saw a train go up,” “ and soon saw a fire start up on this farm, and also on Mr. Guernsey’s farm, along the railroad lands” ; and, after such observation, he went home to eat his dinner, and returned, and found the stump fence on Frier’s place was on fire in a number of places; and he adds “the field where the stump fence was on fire extended to the railroad lands,” and that he had not noticed any fire that day until that time either on the railroad or on the farm. In the course of his-cross-examination, he says that it was a freight train going east on the railroad, and that there was a pusher on this train, and that he was not able to tell the number of the “ lead engine ” or of the pusher, and that he was unable to give the number of the train, and that he first saw the fire on the company’s lands. The witness Irving Shear testified that he first saw the fire on the 5th of April, 1893, near the railroad, at the Jeffers crossing. The witness Prentice, against the objection of the defendant, was permitted to testify that the fire, in his opinion, passed from the railroad to the lands of the plaintiff, and he adds: “ It was burned over from the railroad line, clear up.” It appeared by the testimony given by the defendant, that “ the' grade along the Jeffers crossing is about sixty feet to the mile.”

We think the plaintiff's evidence failed to sustain the allegation of negligence on the part of the defendant in causing the fire on its own premises. Finn v. Railroad Co., 142 N. Y. 11; 48 St. Rep. 431; Frace v. Railroad Co., 143 N. Y. 182 ; 62 St. Rep. 116.

2. The defendant offered to prove that in going east over defendant’s road, from the city of Binghamton, the grade of the road opposite this Frier farm is steep; that engines drawing trains up this grade are obliged to labor hard ; and that, on account of such labor, the engines emit more sparks.” This was objected toas immaterial, and the objection sustained. We think it was error to reject the evidence offered.

In Finn v. Railroad Co., 142 N. Y. 19 ; 48 St. Rep. 431, it appeared that trains passing over on up grade emit from the engines sparks; and, in speaking of that evidence, Earl, J., says :

“ The inference from this evidence is that the great emission of sparks was inevitable in drawing trains up such a steep grade, and, if it was not inevitable, it would have been easy for the plaintiff to have furnished some proof showing that it was due to the defective condition of the engines and to no other cause. Under such circumstances, the fact of the emission of large quantities of sparks furnished no evidence whatever to charge the defendant with negligence. If there had been evidence that any particular engine emitted an unusual quantity of sparks of an unusual size, that might, within the authorities cited, have furnished prima facie proof that the engine was out of repair, and the burden would have been cast upon the defendant to show that it was in proper condition, and that the emission of sparks was inevitable, notwithstanding the use of any ordinary care.”

Hear the close of the opinion in that case it was said that the plaintiff, in order to recover against the defendant, “ must show that it violated some legal duty it owed him, and this he failed to do.”

We are of the opinion that there was a failure in the case in hand to give evidence sufficient to warrant a finding of negligence on the part of the defendant in causing the fire upon its own premises, which spread to the premises of the plaintiff; and we also think it was error to exclude the evidence offered already mentioned.

The foregoing views lead to a reversal. Judgment of the county court and of the justice’s court reversed, with costs.

All concur.


author: Beekman, J.

text:
    Louisa Mander, Pl’ff, v. Charles W. Low et al., as Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    1. Trusts— Creditors.
    Where it is the intention of the testator to create a trust in real estate, the surplus arising on a forclosure of a mortgage on such property cannot ,be reached by the creditors of the life beneficiary.
    2. Same — Power to bind estate.
    A contract made by a trustee, though for the benefit of the trust estate, does not bind the estate, unless the condition of the estate demands for its protection or preservation the expenditure of money which the trustee is unable to provide.
    Action against executors.

      T. B. Milliken, for executors; Andrew D. Cropsey, for receiver ; Wingate, Cullen & Miller, for judgment creditors.
   Beekman, J.

Jacob Cromwell died, leaving a will by which he devised the premises 288 Front street and 226 East Twelfth street, in this city, and the premises 234 and 236 Yan Brunt street, in the city of Brooklyn, to the children of his son, William J. Cromwell. As part of the same clause, however, the testator gave the following directions in reference to the property :

“The rents thereof, after paying taxes, interest, repairs, insurance and all other charges that they be therein both in Brooklyn and New York, shall be used in paying off the mortgages on the Brooklyn property, next in paying off the mortgages on 288 Front street, and last in paying off the mortgage on 226 East Twelfth street, New York. After all mortgages are paid and cancelled of record, the property I bequeath to the children of my son, William J. Cromwell, the rents and profits thereof after paying all charges against the property together with all encumbrances shall go to my son, William J. Cromwell, so long as he shall live, for his own use and benefit, and his death the property shall go directly to his children, share and share alike. But- if my executors shall deem proper, by depreciation in value or otherwise, the avails thereof shall be invested in good bonds and mortgages on real estate, and then be divided as before mentioned, share and share alike.”

I have quoted the clause in ipsissimis verbis. It is evidently the work of the testator’s own hand, — quite inartificial and somewhat ungrammatical, but expressing with tolerable clearness his intention. The mortgage on No. 288 Front street, instead of having been paid off out of the rents, as directed by the testator, has been foreclosed, the property sold, and a surplus has been realized amounting to over $5,000. Two claims have been made to portions of this fund,' — one by the receiver of William J. Cromwell, under a judgment recovered against him for the payment of the amount of the judgment out of the surplus moneys; the other by certain creditors of the executors of Jacob Cromwell, who have recovered a judgment against the executors, as such, and insist that they had, therefore, a lien upon the real estate, and consequently now have one upon the surplus moneys realized upon its sale.

The question first arises, had William J. Cromwell any interest in the surplus which can be reached by the receiver? It may well be claimed that, as he was to enjoy only the income of the property after payment of the principal of the mortgages, the income from the surplus moneys should be impounded to make good the appropriation which has been made of the corpus of the estate for the discharge of the mortgage in the foreclosure proceedings. In that view of the case, William’s interest in the income would be quite remote, and hardly computable. There would be practically nothing which would be available for the receiver. But there is, I think, another theory which also excludes him from any interest, and that is that the title to the property really vested, under the will, in the testator’s executors in trust for the purposes of the devise during the lifetime of William. The ■duties to be performed in the application of the income were such as properly to require the intervention of a trustee, with the powers associated with the office for leasing the property, and making thereout the income necessary to carry out the directions of the testator for its appropriation. The intention to create a trust is, I think, elso reflected in the last clause of the will, which reads as follows:

“I hereby appoint for my executors or trustees to attend to the distribution of my estate and property, as set forth, my son, William J. Cromwell, my son-in-law, Charles W. Low, and my friend Stephen Cutter, with powers and duties as trustees or executors of this my last will and testament to be 'performed by those who shall serve or act, and all the estate of one or more who shall serve or not, shall be fully vested in power and trust as above mentioned, and his or their acts shall have full power and binding force and be fully vested in power and trust.”

The language is that of a half-educated man with a very definite purpose, which, unfortunately, he has undertaken to express in technical form, but without the capacity to do it. However, I think it is plain that he intended the property in question to be held in trust during the lifetime of his son, William. It might almost be said that his testamentary scheme could scarcely be carried out in any other way. It has been repeatedly held that no set form of words is necessary to constitute a devise in trust, but that whether such an estate exists, or not, is a matter of construction, upon a consideration of the intent of the testator, gathered from the whole will. Morse v. Morse, 85 N. Y. 53; Ward v. Ward, 105 id. 68 ; 6 St. Rep. 798. Especially is this true where the will is the handiwork of a testator unskilled in the technique of the law. If I am correct in this view, then the title to the property was vested in the executors in trust, for the purposes specified, during the life of William, upon whose decease it is to vest in possession in his children living at the time of testator’s decease, with power in the executors, on the happening of that event, should they deem it proper to do so, to invest “the avails’’ of the property (and, by necessary implication, to sell the same for that purpose) in bonds and morgages, and divide the same among said children, share and share alike. This very direction furnishes a further indication of the intent and expectation entertained by the testator that his executors should take an active part in the care and handling of the property in question. The view taken is, I think, much more consistent with the purpose of the testator than to hold that his son, William, had a legal estate for life in the property, especially as the latter was to enjoy only an ultimate interest in the rents, after the discharge of the mortgages affecting all of the property devised. As, under this construction of the will, the testator’s son William, took no interest which could be reached by his creditors, — at least, upon the facts as they appeared on the reference in this proceeding, — it follows that the receiver is not entitled to participate, in any form, in the surplus moneys which must be paid to the executors, to be held by them upon the trusts above mentioned. The referee, however, found that the moneys should be so paid, subject to the claim of the judgment creditors of the executors before mentioned. It appears from a certified copy of the judgment roll, among the exhibits in this proceeding, that an action was brought in this Court by the claimants, Thomas Munkenbeck and others, against Charles W. Low, William J. Cromwell, and Stephen Cutter,“as executors and trustees under the last will and testament of Jacob Cromwell, deceased.” The complaint sets forth that at the request of the defendants the plaintiffs performed certain work and supplied certain materials in the construction of a sewer upon certain permises in Yan Brunt street, Brooklyn, of which the testator had died seised; that the value of such work was $167.25, of which but nine dollars had been paid. Judgment is then demanded, against defendants for the amount so due. The defendants made default in pleading, and suffered judgment to be entered against them. The postea reads that the plaintiffs “ have judgment for and do recover of the defendants Charles W. Low, William J. Cromwell, and Stephen Cutter, as executors and trustees under the will and testament of Jacob Cromwell, deceased, the sum of one hundred and eighty-one 90-100 dollars, together with twenty-two 95-100 dollars costs and disbursements, amounting in the whole to the sum of two hundred and four 94-100 dollars, and that the plaintiffs have execution therefor against the defendants in their representative capacity.” Upon this leave was obtained from the surrogate to issue execution, against the executors to collect from the asssts of the estate, and subsequently an order was obtained for the examination of one of the executors as a third party, who was alleged to have some of the property of the judgi'nent debtors in his possession. This somewhat startling procedure now culminates m the present claim for satisfaction of the judgment out of these surplus moneys. The answer to it is quite conclusive. In the first place, the judgment in question never was, and never could have been, a lien upon the real estate out of which the surplus moneys were made. It is well-settled law in this state that the contracts of executors, although made iu the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration moving between the promisee and the executors, as promisors, are the personal contracts of the executors, and do not bind the estate, although the executors could properly pay for the same, and be allowed the amount, osa legitimate expenditure on a settlement of their accounts. Austin v. Munro, 47 N. Y. 360; D. L. & W. Railroad Co. v. Gilbert, 44 Hun, 201; 8 St. Rep. 215. As was said by Judge Allen in Austin v. Monro:

“The principle is that an executor may disburse and use the funds of the estate for purpose auhorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. The rule is too well established in this state to be questioned or disregarded, and any departure from it would be mischievous.”

Section 1814 of the Code has made no change in this rule. Bingham v. Bank, 41 Hun, 377; 2 St. Rep. 638. The above principle applies equally to trustees vested with the title to property upon an express trust. There is, however, this qualification: that where the condition of the estate demands for its protection or preservation the expenditure of money which the trustee is unable to provide, it may not be doubted that he has the power to . pledge the credit of the trust estate to provide for its necessities, and to agree that the person with whom he contracts shall have a charge upon the property for his reimbursement But such a charge is one which can be enforced only in equitable action, Willis v. Sharp, 113 N. Y. 586; 23 St. Rep. 670, upon evidence of the necessity for the relief, and of the providence of the contract, and upon such equitable terms as the court may prescribe. A case somewhat illustrating this principle may be found in U. S. Trust Co. v. Roche, 116 N. Y. 120; 26 St. Rep. 394. The lien so acquired is practically one which is subject to the approval of the court.

The facts in the present case in no wise bring it within the excepted class. It appears from some of the papers in evidence that the work done was rendered necessary by order of the health board but the complaint does not declare upon any pledge of the property of the estate or lien acquired thereon by agreement with the trustees. The action was the ordinary one at law for work performed and the judgment taken was a common-law one for the recovery of a sum of money. It did not bind the real estate in question. The statutory provisions under which the proceedings were had before the surrogate, and leave obtained from him to issue execution, do not apply to claims of this character, and in any event the surrogate had not power to authorize an execution, against the real property of the testator. Code Civ. Proc. § 1823. If the counsel for the claimants relies upon the proceedings before the surrogate as creating a charge upon the property by virtue of the execution so authorized, he must take them with the qualification contained in the above section.

It is quite plain from what has been said that the judgment in question, and the proceedings thereon, do not establish any claim to the fund in question. It therefore follows that the finding of the referee that the .surplus moneys are subject to the judgment in question is erroneous. The whole of such moneys must be paid, without any charge upon them, to the executors of Jacob Cromwell, to be held by them as trustees under the clause of the will containing the devise in favor of William Cromwell and his children. The order should contain appropriate provisions setting out the findings upon the rights and claims of the parties in conformity with this opinion. The order should be presented for settlement on notice.


text:
    Jarvis, Pl’ff, v. Brennan et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed March 30, 1895.)

    Deposition — Examination before trial.
    An infirm party to an action, where he had complied with the othei provisions of the statute, may have his own testimony taken before trial under subd. 5, section 873 of the Code.
    Motion to vacate an order, directing plaintiff's examination before trial.

      Woolsey Carmalt, for pl’ff; Henry A. Rawcliffe, for def’ts.
   Beekman, J.

This action is on the special term calendar, and will shortly lie tried. The plaintiff is eighty-four years of age, and is confined to her house by sickness. An order has been granted, upon her application, providing for her examination before trial; the order appointing a referee before whom ‘the examination is to be had. A motion is now made to vacate this order, on the ground, principally, that subdivisions of section 872 of the,Code of Civil Procedure prohibits the examination of a party where the ground for such examination is physical infirmity, and this claim is based upon the last sentence of that subdivision, which reads as follows: “But this subdivision does not apply to a case where the person to be examined is a party to the action.” The same question was raised in the case of Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354; 63 St. Rep. 362. At page 361, 144 N. Y., Judge Andrews, in giving the opinion of the court, says:

“This is a clear misapprehension of the Code provision (section 872, subd. 5) as it now stands. The last clause in the subdivision was inserted to except a party to an action from the restriction in that subdivision. 'A party complying with the provisions of the other sections is permitted to perpetuate his own testimony in the case by an examination before trial. There can be no doubt about the correctness of this construction.”

The other objection raised is that the examination cannot be had before a referee, because this is an equity action, and the'court at general term in this department has held that in such actions testimony cannot be taken in that manner. Crumbie v. Railroad Co., 83 Hun, 1; 64 St. Rep. 96. It is true that the case in question so holds, but the facts show that the order of reference in that case was not made under sections 872 and 873 of the Code; but when the case was called for trial at special term, and was actually on trial, the presiding judge suspended the proceedings, and ordered the testimony to be taken before a referee. In the case of an examination of a party or a witness before trial, under section 872, the Code expressly provides (section 873) that “the order must require the party or person to be examined to appear before the judge, or before a referee named in the order, for the purpose of taking the examination at a time and place therein specified.” The right, therefore, of the plaintiff to "apply for such an order is clear, and, in view of her great age and infirmities, I think that her right to have the order granted was equally clear. Her testimony upon the trial is important and material to her case. The defendants claim that she is also mentally infirm, but there are no facts before me upon which I can form any judgment as to the correctness of the opinions which are expressed on that subject. The opposing affidavits deny any mental unsoundness on her part. It may well be assumed that at her age there is some failure of memory, but, as the defendants are entitled to be represented at the examination, they will have an opportunity of developing that fact, if it exist, on the cross-examination of the witness. The motion to vacate the order is denied, with $10 costs.


text:
    In the Matter of the Application of the New York Oxygen Company for a Voluntary Dissolution.

      (Supreme Court, New York Special Term,

      Filed May 2, 1895.)

    Abatement and revival — Corporation.
    Upon tlie dissolution of a corporation, actions for personal injuries pending against it, untried, abate and cannot be revived or continued against the receiver.
    Application for a voluntary dissolution.

      Cary & Whitridge, for the motion.
   Beekman, J.

It is quite plain that, upon the dissolution of a corporation, actions for personal injuries pending against it, untried, abate, and cannot be revived or continued against the receiver. The rule in such cases is the same as where the defendant is a natural person, and the cause of action dies with the death of the tort feasor. Grafton v. Union Ferry Co., 46 St. Rep. 549; Sturges v. Vanderbilt, 73 N. Y. 384; McCulloch v. Norwood, 58 id. 562. By chapter 295 of the Laws of 1832 it was provided that any suit or proceeding against a corporation, which shall have been dissolved, might be continued by the court until final judgment, with like effect upon the rights of the parties as if such corporation had not been dissolved. Whether or not this provision should be construed to extent to causes of action ex delicto it is now useless to consider, as it was repealed by chapter 245 of the Laws of 1880, and no substitute for it has been enacted. As the law now stands, the dissolution of a corporation apparently defeats all causes of action against it, however meritorious, which die with the person. This seems to be a serious defect, and calls for remedial legislation. Whatever may be the reason for the law, if there be any reasonableness about it, which limits the life, of the cause of action to that of the wrongdoer, where the latter is a natural person, it is plain that, in the nature of things, such reason can apply with little, if any, force to the case oí a corporation which dies only in a figurative sense. Still, we must take the law as it is, and, while I feel most reluctant to do so, I am still of thp opinion that I am bound to make the order of dissolution notwithstanding its destructive effect upon the pending action against the corporation to recover damages for personal injuries. Section 2429 of the Code of Civil Procedure provides that, upon an op-' plication for a final order dissolving the corporation, if it appears to the court that the corporation is insolvent, the court must make a final order dissolving the corporation, and appointing one or more receivers. The report of the referee, to which no exceptions have been filed, contains a finding of insolvency which seems to be sustained by the proofs. Under such circumstances, the mandatory character of the section apparently leaves the court no option but to grant the order applied for. Motion granted.


author: Herrick, J.

text:
    Isaac Goldsmith, App’lt, v. Wells Company, Limited, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Master and servant — Hiring.
    A person, who is employed to act as an interpreter and attends court for several days waiting for the trial, is entitled to compensation under such employment, though not called upon to perform any services.
    Appeal from a judgment of the county court, reserving a judgment of the city court of Albany in favor of plaintiff.

      John R. Langan (William K. Clute, of counsel), for app’lt; Gleason & Dugan (P. C. Dugan, of counsel), for resp’t.
   Herrick, J.

I think the judgment of the county court should be reversed, and that of the city court affirmed. There was no denial on the part of the defendant that it was a corporation, and therefore, under section 1776 of the Code of Civil Procedure, it was not incumbent upon the plaintiff to prove the incorporation of the defendant.

At the close of the plaintiff’s case, the plaintiff had not proved by legal evidence that the person who employed him to act as an ■ interpreter had authority from the defendant to "do so ; but that weakness of the plaintiff’s case does not appear to have been pointed out on the motion for a nonsuit, and the defect was supplied by the defendant’s evidence. It appears therefrom that the. person employing plaintiff was the general manager of the defendant, and from his testimony it is fairly to be inferred that he had charge of the litigation in question. Under that employment to act as interpreter, while the plaintiff did not actually interpret, he was kept several days at the court, waiting for the case in which he was employed to be tried. He is entitled to compensation for such employment, and the findings of the court as to the terms of such employment, and the compensation therefor, are findings of facts having some evidence to sustain them ; and, such being the case, the court, upon appeal, will not disturb them.

Let the judgment of the county court be reversed, and the judgment of the city court be affirmed, with costs and disbursements of this appeal and in the county court

All concur.


text:
    David Curry, Resp’t, v. Union Electric Railway Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Negligence — Contributory.
    The facts and circumstances, in the case, were held to make the question of plaintiff’s freedom from contributory negligence one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      John L. Henning, for app’lt; John Foly, for resp’t.
   Herrick, J.

The only point in this case that strikes me is as to whether there was any evidence of a lack of contributory negligence on the part of the plaintiff to submit to the jury. It appears that on the east side of Nelson avenue there were several buildings that somewhat obstructed the view of the defendant’s tracks; also a burn east of the Wiggin’s house ; that the plaintiff, as he approached the track, looked between the house and the barn, and saw nothing upon the track. It appears also that, for a space of some feet, the Wiggin’s house entirely obstructs the view of the tracks, looking east, until a point is reached distant eighty feet from the south rail of defendant’s tracks, at which point said tracks can be seen for a distance of 100 feet from the center of Nelson avenue. At sixty feet from the south rail, defendant’s tracks can be seen for a distance of 136^- feet -p and forty-six feet therefrom the defendant’s tracks can be seen for a distance of 289 feet. The plaintiff, it appears, was standing on the right-hand or east side of the wagon. His attention was directed to a car to the west of Nelson avenue, and some 500 feet distant from the crossing at which point it turned off on Adams street. He does not seem to have looked continuously, but, as he turned and looked to the east, he discovered the car- forty or forty-five feet distant; his horses at that time being almost upon defendant’s tracks. . Doing at any rate of speed that was testified to upon the trial, either at eight or twenty miles an hour, it would take the defendant’s car but a few seconds to traverse the difference between forty or forty-five feet and 136 feet, at which it appears the plaintiff could have seen the car, when sixty feet away, or 289 feet, when forty-six feet away from the south rail. It will thus be seen that "the diversion of plaintiff’s attention from the car coming from the west for but a very short period of time would enable defendant’s car, coming from the east, to cover the distance at which it could be seen after the line of plaintiff’s vision reached beyond the Wiggin’s house, until the car would be almost upon plaintiff’s vehicle. It was the plaintiff’s duty to look both ways. He looked to the east at one point. He then reached a point where he could no longer look to the east. He then looked to the west. His attention was detained there for a moment, and, when he looked to the east again, the car was almost upon him. It seems to me, therefore, under the circumstances, that this is a case for the jury to determine. Judgment should therefore be affirmed, with costs.

Putnam, J., concurs; Stover, J., not acting.


author: Stover, J. Herrick, J.

text:
    Clarissa Miles, Resp’t, v. Fonda, Johnstown, and Gloversville Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Negligence — Contributory.
    Where, in an action for injuries received at a railroad crossing, the plaintiff’s testimony that she looked for the train but did not see it, is opposed by other testimony that, had she looked in the direction from which the train came, she could not have failed to see it, the question of her contributory negligence is one for the jury to determine.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Baker & Burton (A. D. L. Baker, of counsel), for app’lt; L. F. Fish, for resp’t.
   Stover, J.

The circumstances under which this accident occurred have been heretofore reviewed by this court in the case of Shires v. Railroad Co., reported in 80 Hun, 92; 62 St. Rep. 4. In the case cited the action was brought by the driver and the owner of the vehicle. This action is brought by a passenger. I think the evidence in this case shows a different state of facts than those appearing in the Shires Case. In this case four witnesses have testified that they were listening; that no bell was rung, whistle blown, or signal given as defendant’s train approached the crossing. Other witnesses testified that a bell was rung. Hence this question was properly submitted to the jury.

As to the contributory negligence of the plaintiff, in the Shires Case the plaintiff testified that he did not look to the south, from which direction the train was approaching, after he reached a point forty-five feet from the railroad track. In this case plaintiff swore she looked when twenty-five or thirty feet from the track, but did not see the approaching train. The question tor the jury was whether the passenger had been guilty of contributory negligence, and I think tliat question was properly submitted to the jury. On the whole case, as the facts appear on this trial, I think the' question of contributory negligence was for the jury, within principles established in Hoag v. Railroad Co., 111 N. Y. 199 ; 19 St. Rep. 80 ; Massoth v. Canal Co., 64 N. Y. 524; and like cases. In the Hoag Case, deceased and her husband could see down the track a long distance, for seventy feet before reaching it; yet the court held the case should have been submitted to the jury. In this case there is evidence that plaintiff was going from four to six miles an hour, and the train eighteen miles. At that rate the wagon was traveling about seven feet per second, and the train about twenty-six feet. Probably the train could not have been seen before the wagon reached the elm tree, sixty feet from the track. When the plaintiff passed the tree, the horse was only seven or eight seconds from the track, and the train may not have been in sight. It should be remembered that the railroad track made a short curve from the bridge to the crossing, and that plaintiff, Shires, and Shires’ wife, were sitting on one seat, facing the west. When the wagon was about thirty feet — say four seconds — from the track, at which point plaintiff said she looked to the south, the train may have been 100 feet distant. The evidence of the plaintiff that she looked and did not see it is not incredible. The train was coming around a curve, behind her. As she sat facing the west, with two others in the seat, doubtless unable to turn around and look back of her, it is not improbable that the cars were not in her line of vision, looking to the left as, far as she could see. The witnesses who afterwards stood in the street at the place of the accident, with their faces to the south, could see to the railroad bridge, but a person driving to the west, sitting on a seat with two others, and naturally nnable to look backwards, could not, very likely, see more than seventy-five or 100 feet, as Cross testified. As we have seen, when plaintiff passed the elm tree, the horse’s head was probably about eight seconds from the track. Plaintiff then might, without being deemed negligent, turn and look to the right, and after that to the left, as she swears she did at twenty-five or thirty feet from the track. When she again looked, the horse was on the track. The facts were all before the court and jury. I do not think it clearly appeared from the uncontradicted evidence that plaintiff’s negligence contributed to her injury, and hence conclude the case was properly disposed of on the trial.

Putnam, J., concurs.

Herrick, J.

(dissenting.) — This is an appeal from a judgment rendered upon the verdict of a jury in favor of the plaintiff and against the defendant. The action is founded upon an accident, that occurred on the 10th day of May, 1893. Another case arising out of the same accident has been heretofore before this court, Shires v. Railroad Co., and is reported in 80 Hun, 92; 62 St. Rep. 4. The facts in each case are substantially the same. Practically the only difference is that in that case the action was brought by the driver of the wagon that collided with defendant’s train, and in this action the plaintiff was a passenger in said wagon. The horse attached to the wagon in which plaintiff was seated appears to have been entirely under the control of the driver, and, as stated in the Shires Case, 80 Hun, 92; 62 St. Rep. 4, defendant’s train in of the of the for disfanee oí 200 feet before the crossing was reached at which the accident occurred. It could be seen by the occupants of said wagon, had they looked, in sufficient time to have stopped, or to have turned out upon either one of two turnouts from the main road before the crossing was reached. Recognizing the fact that the responsibility of the driver of a vehicle, and of a passenger therein, is different in degree, still I am unable to find any evidence in this ■case to submit to a jury showing that the plaintiff was free from contributory negligence. And in cases of this kind it is too well established to need citation of authorities that the plaintiff must show affirmatively her own freedom from negligence, in order to enable her to maintain her action. This she has failed to do. From the oral evidence in this case, and the maps of the locality submitted, it is perfectly apparent that, had the plaintiff discharged the duty devolving upon a person approaching a dangerous crossing, it would have been impossible that she should not have either heard or seen the approach of the defendant’s train in ample time before the crossing was reached to have avoided the danger, or at least to have made an attempt to avoid the danger that would have released her from the imputation of contributory negligence. Under the circumstances of this case, the fact, if it-be a fact, that she did. not hear or see the approaching train, is of itself sufficient to satisfy me that she neither looked nor listened when she should or might have done so. Therefore she did not discharge the duty resting upon her in approaching such a locality.

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


author: Smith, J.

text:
    John Adamson, Pl’ff, v. Nassau Electric Railroad Company et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed May 6, 1895.)

    1. Municipal coefobation — Action by taxpayeb.
    If a city council,- in bad faith, and as a matter of favoritism, grants to a railroad company a franchise for a less sum than could be obtained from a competing company, such an act is within the condemnation of chap. 301 of 1893, and an action by a taxpayer will lie to declare it void.
    •2. Same.
    Such act constitutes a waste of municipal property.
    3. Same.
    The franchises were held to have been granted to the defendant cor. porations in bad faith and as a matter of favoritism, and to be, therefore, void.
    Action to have declared void certain franchises granted to defendant corporations by the common council of Brooklyn.

      Edward M. Grout and Jesse Johnson, for pl’ff; James C. Church, Samuel B. Clarke, Elihu Root and John J. Allen, for def’t companies; Alfred E. Mudge, for deft city of Brooklyn; Foster L. Backus, for def’t board of aldermen.
   Smith, J.

Upon the 19th day of June, 1893, the common council of the city of Brooklyn passed a resolution purporting to grant, to the Nassau Electric Eailroad Company the right to construct and operate an electric road upon certain streets in the city of Brooklyn. Upon the same day the said council passed a resolution purporting to grant to the Kings County Electric Eailway Company the right to construct and operate an electric road upon certain other streets in the city of Brooklyn. Upon the same day the said council passed a resolution purporting to grant to the Brooklyn City Eailroad Company the right to construct and operate an electric road upon certain other streets in the city of Brooklyn. Upon the 23d day of June these resolutions were approved by the mayor of said city. Tnis action is brought by the plaintiff, a taxpayer in said city, to have declared void the franchises thus granted to the Nassau Electric Eailroad Company and the Kings County Electric Eailway Company, on the ground that the same were fraudulently granted and constitute a waste of the city property.

In the case of Adamson v. Railroad Co. (reported in general term), in 74 Hun, at page 3; 56 St. Rep. 214, the law has been declared in this department to be that where the common council grants a railroad company, for nothing, a franchise for which the city is offered a substantial sum of money by another railroad company, and where such action is in bad faith, and as a matter of favor to the company receiving the grant, such action 'amounts to a waste of the public funds of the municipality, and is within the condemnation of the statute under which this action is brought. This decision, whether right or wrong, must control my decision in any case which involves the principle decided. It must follow, as a corollary to the proposition decided, that if the council, in bad faith, and as a matter of favoritism, grants to a railroad company a franchise for a less sum than could be obtained from a competing company, such an act is also within the condemnation of the statute, and this action will lie to declare the same void. The two propositions of fact then remain to be established by the plaintiff to entitle him to the decree of the court: (1) That the franchises were granted for a less sum than could be obtained from a competing company; (2) that such franchises were given in bad faith, and as matter of favoritism to the defendant companies.

1. The provision for compensation contained in the grants, both to the Nassau and to the Kings County Companies, requires the companies to pay into the treasury of the city one per cent, of the gross earnings, until the gross earnings shall amount to the sum of §20,000 per mile; thereafter two per cent, until the gross earnings shall amount to the sum of $40,000 per mile; thereafter, three per cent, upon the said amount of gross earnings. Some question is raised as to whether these consents are to be construed as referring to a mile of single track, or double track. I cannot see that the question has any material bearing until the company shall earn at least §40,000 per mile of double track, in which case the eonstuetion of the statute would determine whether the company was to pay three or four per cent, upon its gross earnings. Nor is it necessary to determine whether, under the statute, the franchises could have been sold at auction, or granted for a lump sum instead of for the percentage compensation. Under the statute the common council clearly had the right to exact the full three per cent, on all the gross earnings received. They did not exact the limit of compensation within the law. ' The Union Street Railway Company had offered over. $250,000 for these franchises granted to the defendant companies. For some portions of the streets granted by these consents, they had offered the sum of $20,000 per mile. The Brooklyn City Railroad Company had offered $150,000 for substantially the same privileges. Both in their written communication to the council, and at the public meetings of the committee, upon June 9th, the Union Street Railway Company had, through its attorneys, requested, if other companies should bid higher, that such fact might be made known to them, that they might raise their bid, if they were so advised. The Brooklyn City Railroad Company had made a similar request in its petition to the common council. The Union Street Railway Company had further requested, if any other form of compensation was to be called for,, that the terms and conditions might be given to them, that they might bid thereupon. The compensation exacted was so exacted not upon any bid by any company. There was no effort made to ascertain whether the defendant companies themselves were not willing to pay more for the franchises. Ho opportunity was given, either to the Union Street Railway Company or the Brooklyn City Railroad Company, to bid therefor upon the percentage system. It is impossible to ascertain, to any degree of accuracy,, what would be the profits to the city under the system adopted. When, however, ,the common council granted these franchises, for a part only of the compensation which' it was authorized to exact, to two electric companies, who had made no offers whatever, without any endeavor on the part of the council to secure a greater compensation, and without any opportunity to two competing companies to bid therefor, who were asking these franchises, and asking an opportunity to bid, then, in my judgment, a prima facie case of waste.is made. The trustees must then assume the burden of showing that they have secured for their cestuis que trustent a fair value for the franchises. This burden they have not assumed, and had not met. I must therefore find, both upon the facts and the presumptions, that the compensation that was exacted was less than could have been procured for the said franchises. ' ,

2. Was such action in bad faith, and as a matter favoritism to the defendant companies? There was no requirement of law that, the council should exact anything for these franchises. They could have given them away, provided their action was in good faith, and as they supposed, for the best interests of the city. It is only when waste or injury to the funds of the city is the result of bad faith and favoritism that this action is authorized. The consents, are regular upon their face. Some compensation is exacted. Fraud must be proved. The presumption of good faith always attaches to an act of a public officer. We must look, then behind the grants of the franchises, and ascertain whether they were in fact given by the members of the board in the honest fulfillment of their trust, and for what they supposed to be the best interests of the city. In examining this question, it is proper to inquire what relations, if any, existed between the members of the board whose actions are questioned and the defendant companies. It appears from the evidence that in 1892, by the voice of the same thirteen members of the council who voted for the franchises here in suit with one exception, valuable franchises were given, without compensation, to the Union Railroad Company and the Coney Island, Ft. Hamilton & Brooklyn Railroad Company. In both of these companies, Mr. Flynn, who is the president of the defendant companies, was largely interested. It appears that in the Union Railroad Company he owned a large part, if not a majority, of the stock. The gifts of the city franchises at that time were made in the face of an offer by the Union Street Railway Company of $30,000 therefor, which offer was entirely ignored. In April, 1893, the same thirteen aldermen who voted for the franchises here attacked, with •one exception, passed resolutions purporting to grant to these defendant companies, without any compensation whatever’, substantially the same franchises which are here granted. This was done in the face of an offer from the Brooklyn City Railroad Company of $150,000 for the very franchises which these aldermen sought to give away to these defendant companies. Both of these attempted gifts miscarried. They are properly considered, however, when - we find these same aldermen passing a resolution purporting to grant to these defendant companies these valuable franchises for a part only of the compensation which they were authorized to exact, without endeavor on their part to obtain a larger compensation therefor, and refusing an opportunity to rival companies to make any bids thereupon. I am not unmindful of that part of the mayor’s message of April 17th to the council in which it is asserted that, by current rumor, the resolutions of April 10th, by which these gifts were made to the defendant companies, were passed upon the assumption that the mayor had the power to regulate the compensation. There is no proof in the case which gives me any reason to believe that such was in fact the understanding of the board. These thirteen aldermen by whose votes this grant is assumed to have been given have stated fully their reasons for the gift. One of those reasons is, as appears in the report of the railroad committee upon the application of the Union Street Railway Company, that there is a grave doubt as to the power of the Union Street Railway Company to extend its route prior to the construction of its originally proposed road. Justice Cullen, in the suit of Adamson v. Railroad Co., had just decided that such an extension was lawful. The chairman of the railroad committee had, in the presence of others on the committee, put this question to the corporation counsel, whose answer was that, if compelled to answer it without examination, he should have to say no, but that it was a question upon which he should like to make examination. They did not wait, however, for an examination by the corporation counsel. After the question had been fairly decided by the court, the assignment of; a doubt thereupó» as a reason for their action could not have been made in good faith. It is evidently a pretext, and not a reason.

Another reason assigned was that the extensions proposed by the Union Street Railway Company were separated in several instances, not only from each other, but also from the remaining routes of the Union Street Railway Company, so that, if built upon, they would form either distinct routes, or entirely disconnected routes from the main routes of the company. If the amended petition of the Union Street Railway Company of May 22d were the only information possessed by this committee as to the extensions proposed, the reasons would have been good. But upon the 12th day of June, a week before the report of this committee, there was handed to the president of the council another petition of the Union Street Railway Company, wherein the streets upon which offers were made were not disconnected from the main line, or from each other. The learned counsel for the defendants argues that the amended petition was considered by the committee in making its report. If so, this reason assigned was not assigned in good faith ; it was a pretext, and not a reason.

Another reason assigned is that better facilities to the traveling public would be offered by the grants to the defendant companies. The Coney Island Ft. Hamilton & Brooklyn Railroad Company and the defendant companies were associated together, and were to be run -in connection with each other. These companies had the consents of outlying towns through which they proposed to construct their roads. It was thus argued that the proposition of the defendant companies presented more of substantial benefit to the public at large than did the proposition of the Union Street Railway Company. This reason is sufficient, if made in good faith. Was it so made? Nothing whatever is said in the reports of this committee about the proposition submitted by the Brooklyn City Railroad Company. That company had made application for substantially these same franchises, and had made an offer of $150,000 therefor. That company had already constructed in thé city of Brooklyn, and in outlying towns, over 180 'miles of railroad. Applications were then pending for consents for the construction of eighty miles further in outlying towns, which applications were afterwards granted. The Brooklyn City Railroad Company not only made this cash offer, but requested an opportunity to make further bids for that franchise. If the reason assigned be a good reason for preferring the defendant companies to the Union Street-Railway Company, it certainly can constitute-no reason for preferring the defendant companies to the Brooklyn City Railroad Company. Every advantage thus gained would be substantially increased by giving these grants to the BroolclynCity Railroad Company, by reason of its extended railroad already built in and out of the city of Brooklyn. It is true that, upon the 19th day of June the Brooklyn City Railroad Company was given certain franchises. But what they were given constituted a very small part of what they were asking for, and asking to bid upon, and constituted no part of what was desired by the-defendant companies. But, again, were the reasons assigned made in good faith, as against the application of the Union Street Bail-way Company ? It developed upon the trial that this company had a small capital. They had made application, however, to increase their capital stock. Of this fact the hoard of aldermen were notified by the amended petition submitted upon June 12th. They requested that if there was any objection to their application, by reason of any defects of form or substance that ware curable, they be made aware of that fact, that they might cure the same. Suppose a private trustee, with property of great value for sale, were requested by different persons to be allowed to bid thereon. Could he ignore their offers, and sell the property for a small sum to a friend, by reason of the mere assertion of the fact that he questioned their good faith ? Any assumed doubt as to the good faith of the application of the Union Street Bail way Company is not a substantial reason for the rejection of their offer. That doubt could have been easily removed by tests which they were authorized to make in the making of conditions upon which such bids should be made. The council could have said to them : “ We doubt the good faith of your application. Prove it to us by increasing your capital stock, and extending your route to include there outlying towns, and you may then bid for these franchises." In the Adamson Case, cited, Justice Cullen, in his opinion says : ‘T deny the power of the common council to arbitrarily reject applications on the ground of doubts as to the good faith'of the applicants, without making an. investigation on the subject.” This company was before the board and its committee, asserting its good faith, and offering any vouchers that should be asked. But none were asked. The board did not care to have the proof made.

Having examined the relations of the parties, and found that they were such as to cast suspicion upon this grant, and having examined the reasons assigned for their action, and having found that some, if not all, of those reasons were not made in good faith, let us look a little further, and see if there is any other fact to aid us in the solution of this problem. Going back to the petitions presented, we find in the petition of the Union Street Eailway Company specific offers of compensation for those franchises. In the petition of neither of the defendant companies was there any offer whatever of compensation. The question occurs to one, at the outset, how did these companies dare to make an application without an offer, after the decision in the case of Adamson v. Rail-road Co.? They must have known their men. After the petitions were presented, came then the public hearing before the committee of railroads, upon June 9th. There stood the attorney for the Union Street Bailway Company, making bids and increasing their own bids, and asking to be allowed to know upon what conditions they were to bid, and still the defendant companies made no bid whatever. They still were not apprehensive of the result. Upon the request of the attorney for the Union Street Eailway Company to be made acquainted with the manner of the bidding, he was Unformed by the chairman of the committee that they were not there for that purpose. For what purpose were they there? They were trustees of the taxpayers of the city of Brooklyn, charged by their trust to make most profitable to those taxpayers the disposition of this valuable property. They refused to give any terms of •sale, that willing bidders might make bids thereon. Private trustees have suffered the severest censure of the court for acts less flagrant. The attorneys for the'Union Street Railway Company requested that if there be objection to their bid, by reason of any defect which was curable, they might be notified thereof, that they might cure such defects, and make a bid that would be acceptable to the committee and to the board. They were informed by the chairman of the railroad committee that they were not there for the purpose of detecting defects in their application ; that that was their lookout. Certainly, this committee, with the aid of the learned counsel, has made a most careful study since that time to detect such defects. They did not, however, notify the attorneys of the=competing companies, so that the defects might be cured. Yet the defendants claim that here were honest trustees, fulfilling the purposes of their trust in a faithful, conscientious manner. Come then to the meeting of June 12th. Mr. Grout, in behalf of the Union Street Railway Company, presented to the president of the board its amended petition. Upon undisputed evidence, nearly all of the aldermen were present in the board room. The president took the petition, and called out these thirteen aldermen who were opposed to the application. Alderman Heany went into the committee room, and saw one of these, thirteen aldermen reading a paper which was called the “Amended Petition of the Union Street Railway Company.” He asked, “ What are you going to do about it ? ” The answer was, “ There will be no meeting today.” Yery soon the president came into the council chamber, and called the council to order. Six men answered to their names upon the roll call. Not one was there from among those thirteen except Alderman Wafer who had not acted until that time with the thirteen. No quorum was present, and the council adjourned. It does not require one learned in the law to interpret such action. It is no less than dishonest evasion of duty. The learned counsel for the defendants who tried this case sees very clearly the force of this impeachment, and seeks to evade it by claiming that the amended petition was nevertheless considered, as appears in the reports of the committee. Even if this be true, it does not wipe out the history of that day, and the inferences necessarily drawn from it. But, if it be true, then the report of the railroad committee, in assigning, as one of the reasons for the rejection of the application of the Union Street Railway Company, that its routes were disconnected from each other and from the main route, has given a dishonest reason, and one that the committee knew was untrue. Come next to the meeting of June 19th. The amended petition which has been attempted to be introduced upon June' 12th was then offered, and referred at once to the railroad committee. Before looking at that petition, however, the committee made its report, by which was recommended to be granted to the defendant companies these valuable franchises, upon the terms before specified, and by which the application of the Union Street Eailway Company was denied. It appears that the percentage method of compensation was known to the defendant companies before the meeting. Alderman Wafer swears that'the. railroad committee had met, and determined upon the percentage plan of compensation, and had determined upon their reports. Alderman Thomas was a member of that committee, and had no notice'whatever of such a meeting, or no notice of the intended action of the majority of the committee. A notice was sent late to him of a meeting, of which he afterwards heard by accident from Alderman Jordan. That meeting he attended, but at that time there was no discussion as to the percentage plan of compensation, nor was there any determination as to what should be the report. The first information which Alderman Thomas had of the intended report of the majority of the committee was a few moments before . the meeting of June 19th, when he was asked to sign it. Aider-man Thomas was opposed to these grants. If he had been present at the meeting with the committee when the percentage plan was determined upon, probably these competing companies would have known of that fact, and have made bids upon that plan. But this was not what the railroad committee or the defendants desired. They wanted no bids upon the percentage plan. They did not even attempt to get a better compensation from the defendant companies. Alderman Thomas requested that he be given an opportunity to examine the reports from his own committee, and that an adjournment be' had for that purpose. This was refused. Speeches were made by several aldermen in opposition to these reports. Not one word was said by any one in their behalf. It appeared to be unnecessary. By the vote of these same thirteen these valuable.franchises were then given to these defendant companies without giving to the Union Street Eailway Company or the Brooklyn City Eailroad Company any opportunity to bid therefor.

The learned counsel for the defendants, however, ingeniously argues that that was the plan called for by the statute; that that was the plan referred to in the message from the mayor, in one of his communications to the council; and that these companies, therefore, should have known that that was the proper plan upon which they should make their bids. Whatever should have been known, however, not only the Union Street Eailway Company, but also the Brooklyn City Eailroad Company, understood that the compensation was to be in the form of a lump sum. It matters little what was the cause of this mistake. It existed. It was apparent to those trustees, who were dealing with the property of their cestuis que trustent, of great value. They knew the mistake. If they were honest trustees, they would have corrected the mistake, so that these other companies would have had an opportunity to bid upon the plan which was adopted.

The consents themselves have one significant feature. In the provision for the payment of a percentage of gross receipts, is inserted the clause, “ realized it.” Under the strict then, if this road were rented for a nominal sum only, the percentage could be collected only on that nominal sum. It is not necessary to construe these words so placed. Counsel for defendants argue that the percentages are to be estimated on receipts on miles of streets, and not of single track, and that it is impossible that they should come below the $20,000, and will reach nearly, if not quite, $40,000. Why, then, was any provision inserted'for one per cent, on receipts less than $20,000 a mile ? Had this provision any connection with the words, “ realized by it” ? They are not found in the statute. They are carefully chosen, and carefully placed. They were not put there unwittingly.

In every act of the committee, or of the thirteen aldermen who voted for these franchises, there is an apparent determination to grant to these defendant companies these valuable rights for as small a sum as they dare. Foiled in their attempt to give them away, their studied effort is to prevent competition. False to-, their trust, they endeavor to sell the property of their cestuis que trustent for as little as they can get. The evidence of their fraudulent purpose is both direct and circumstantial. It leaves in my mind not the shadow of a doubt. Learned counsel have.endeavored to cover the fraud by reports of this committee, ingeniously drawn. With great ability have the counsel sought to.divert the issue in this case unto a trial of the good faith of the Union Street. Railway Company. The amended petition of that company, of May 2nd, whereby they sought to obtain thirteen disconnected routes, may well have caused suspicion in the minds of the board as to the good faith in presenting the same. If they had honestly met the amended petition of June 10th, which was given to the chairman of the board upon June 12th, and the railroad committee had been frank with this company upon June 9th, some color would have been given to the good faith of their suspicions. When their action is considered, however, in the light of the application of the Brooklyn City Railroad Company, as well as of the Union Street Railway Company, this action stands undefended. The franchises are declared void


author: Broxvn, P. J.

text:
    Phebe R. Kissam, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Damages — Elevated bail way — Release.
    A judgment for damages against an elevated railway for interfering with easements appurtenant to real estate must require * a release of the easements claimed to be injured, and of any mortgage or other lien that may exist thereon.
    Appeal from a judgment entered • on a verdict in favor of plaintiff.

      William H. Paige, Jr., for app’lts ; Francis Russell Whitney, for resp’t.
   Broxvn, P. J.

The findings of the trial court upon the question of value are not without support in the testimony, and we cannot say that the proof preponderated in favor of a contrary result. While the plaintiff’s case is not a strong one, we are of the opinion that the conclusion of fact must stand. None of the exceptions taken require a reversal of the judgment. The judgment is, however, defective in form, and must be modified so as to provide that the plaintiff, upon receiving the amounts adjudged as damages, shall execute and deliver to the defendants a release of the easement.claimed to be injured, and a release of any mortgage or other lien that may exist thereon. So modified, the judgment must be affirmed, without costs.

All concur.


author: Brown, P. J.

text:
    John M. Andersen, as Executor, etc., Resp’t, v. Frederick Petereit et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Contract — Building—Performance.
    Where the departures from, the contract are willful, and the defects and omissions so numerous as to pervade the whole work, a recovery cannot be sustained by the contractor on the theory of substantial performance.
    Appeal from a judgment, dismissing the complaint.

      Abm. I. Elkus, for app’lts ; Herbert D. Lent, for resp’t.
   Brown, P. J.

This action was brought to foreclose a mechanic's lien filed by Andrew Andersen, the plaintiff’s testator, against the property of the defendant. Andersen entered into a written contract with the defendant to erect for him a dwelling house according to certain plans and specifications for the sum of $3,200. The final payment was to be $1,300, and was to be made upon the completion and acceptance of the building. The lien was filed for the amount of the final payment. The action was defended on the ground that the work had not been performed in accordance with the drawings and specifications. The referee found that the contract was substantially performed, but that, by reason of defective work and defective materials used in the construction of the house, the defendant was entitled to deduct $300 from the balance of the contract price, and the defects in the building were not substantial ones, and did not pervade 'the whole work, and that “they were not so essential that the object of the parties failed of accomplishment by reason thereof.” The referee has not- found the particular defects in the building or materials for which he made the allowance of $300, and it is impossible for this court, from an examination of the evidence, to ascertain what matters were intended to be covered by that allowance. In response to requests to find, made by the defendant, the referee negatived nearly all the claims of variation from the contract made by the defendant. He found that some of the doors and windows furnished were not of good material, and. did not comply with the contract, and that the footing courses under the foundation walls and chimneys did not extend six inches beyond the walls and chimneys; as required by the contract. Ordinarily, the question of substantial performance has been held to be one of fact; but it was said in Crouch v. Gudmann, 134 N. Y. 45, 54 ; 45 St. Rep. 470, that the cost of the completion of work by remedying defects or supplying omissions in it to meet the requirements of a contract may be so great as to preclude the conclusion of substantial performance. In that case the fair value of the labor and materials necessary to remedy defective work was but $205, and yet three judges dissented from an affirmance of a judgment in favor of the plaintiff on the ground that the defective performance of the contract was sufficient to defeat a recovery. In Flaherty v. Miner, 123 N. Y. 382; 33 St. Rep. 681, the price of the work fixed in the contract was $3,500. The jury allowed the defendant $600 for the expense of doing work which the plaintiff was bound under the contract to do, and it was said by the court “that, if it had appeared upon the trial without dispute that such a substantial portion of the work remained to be done, * * * it might well be that the plaintiff could not have recovered upon the theory of a substantial performance.” There was no exception) however, that presented that question for decision in the court of appeals, and lienee the judgment was affirmed. In Crouch v. 'Quimann, the court said:

“The rule of substantial performance should not be extended beyond the purpose in view when the relaxation of the strict performance was adopted, which was founded upon equitable considerations in furtherance of justice, and made applicable to cases of honest intention of contractors to fairly perform their contracts, and who shall in the main have done so, with only slight defects or omissions inadvertently and unintentionally caused.and appearing in the work.”

If a contractor should fail to perform some distinct or specific piece of work, which, by his contract, he had stipulated to do, the value of which was one-tenth of the contract price, there would, I think, be no question that there was not a substantial performance of the agreement. The rule still prevails that the plaintiff must show performance when that is a condition of payment. The i'elaxation of its strict application in cases arising under building contracts was not intended to permit courts and juries to substitute a money indemnity as an equitable compensation for unfulfilled covenants of the contract, but arose because of the difficulty of complying with entire exactness with all the particulars embodied in that class of agreements. Hence it has been repeatedly said in the decisions that it is only in cases where there has been no willful omission by the contractor, but he has honestly and faithfully performed the contract in all its substantial particulars, that he will not be held to have forfeited his remuneration by mere technical or unimportant omissions or defects. The rule stated by Judge Church in Glacius v. Black, 50 N. Y. 145, and which has been frequently repealed in later decisions was that, if the defects or omissions are so numerous and prevailing as to show that the whole job was done in a slovenly and improper manner, not conforming substantially with the plans and specifications,"there was no rule of law which entitled the claimant to" compensation. When the defective work bears such a proportion to the whole contract as it docs in this case, I think it a subject of grave doubt whether a recovery could be sustained by the contractor on the theory- of substantial performance. In this case it is not, however, necessary to rest our decision upon the amount of the value of the defective work, as the defects and omissions were so numerous that they must be held to have pervaded the whole job. The allowance made by the referee for defective work was evidently not based upon the testimony offered by the plaintiff, as his witnesses testified that $25 would remedy all defects. The testimony introduced by the defendant showed defects which ran through the whole work. Foundations were of less size than specified, and constructed of inferior material; timbers in the frame of the building and in the partitions were smaller than called for by the specifications ; the chimneys were out of plumb, floors and ceilings out of level, walls uneven, and corners not square; doors, windows, and blinds were defective, and of poor material; and generally defective work was the rule, and not compliance with the contract; and in one important particular the plans and specifications were departed from to such an extent as to preclude the conclusion of performance. The specifications provided that the contractor should put footings of heavy, rough stone under all foundation walls, piers, posts, and chimneys, to be not less than six inches thick, and to protect not less than six inches on all sides of walls and piers. The referee found that there were footing courses under the walls and chimneys, but that they did not extend six inches beyond the walls, and it appears from the testimony of the mason that the stones used were not as thick as called for by the specifications. There was nó ambiguity about the contract in this respect, and the defect is not one that can now be remedied. The defendant has a right to have his house erected according to his own idea of strength and utility, and the contractor was bound to construct the wall of the size and character specified. “If the owner, having regard to strength and durability, has contracted for walls of specific materials, to be laid in a particular manner, * * * the builder has no right to substitute his own judgment for that of others. * * * Having departed from the agreement, if performance has not been waived, the law will notallow him to allege that he has made as good a building as the one he engaged to erect.” Smith v. Brady, 17 N. Y. 186, 187. In Glacius v. Black, 67 N. Y. 563, a judgment in favor of the plaintiff was reversed by the court of appeals for a departure from the specifications, no more important than in the respect found by the referee. There was no difficulty in complying with this provision of the contract, and the contractor’s act in departing from it was willful, and it cannot be legally justified without absolutely setting aside the rule which requires performance of the contract as a condition of a recovery of the stipulated compensation. The case is not one of substantial performance, but one where the builder substitutes his own judgment of wliafc is necessary in place of the stipulation of the contract. The case, in this respect, was one of a failure to perform, and the omission is fatal to the plaintiff’s right to recover.

It is claimed by the respondent that the defendant waived the defects in the performance of the contract. Waiver is largely a question of intention, and we do not think that the evidence before us would permit the conclusion that the defendant surrendered his right to have the plans and specifications complied with. The referee, however, made no findings upon this question, and it is not before us for review. The judgment must be reversed, the order of reference vacated, and a new trial granted; costs to abide the event.

All concur.


text:
    Margaret J. Travis, App’lt, v. Edward R. Phelps, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Equity — Remove cloud prom title.
    An action to remove the cloud from title to land sold under an execution against the record owner and purchased by defendant will lie, where such owner, before the judgment was entered in the county court where the land was situated, had conveyed the land to plaintiff by a deed which ■ was lost without ever having been recorded, and a new deed was given after the entry of the judgment.
    Appeal from a judgment dismissing the complaint.

      Joseph C. Crane, for app’lt; Benjamin F. Gerding, for resp’t.
   Brown, P. J.

When this action came on for trial at the special term, the complaint was dismissed upon the ground that the facts stated therein did not constitute a cause of action. We are of the opinion that this ruling was erroneous, and that the judgment must be reversed. The action is one to remove a cloud upon the title to land in Westchester county, of. which plaintiff alleges she is in possession and seized in fee simple. The complaint alleges the following facts: Bernard Travis acquired title to the land on August 24, 1864, by a deed which was duly recorded on September 6, 1864. By a deed dated October 26, 1877, and recorded October 29, 1887, lie conveyed the land to Leonard Travis, who, on March 8, 1885, reconveyed it to Bernard. That the deed from Leonard to Bernard was lost, and that on May 18, 1891, Leonard and his wife executed another deed to Bernard for the purpose of taking the place of the lost deed, and on Rovemberll, 1892, Bernard Travis conveyed the land to the plaintiff. On March 3,1885, the defendant recovered a judgment against Leonard Travis in the supreme court for the county of Rew York for $225, a transcript whereof was filed and judgment docksted thereon in Westchester county on August 29, 1888. Execution was issued thereon to the sheriff on March 22, 1893, and the property sold to the defendant on J une 24, 1893, to whom the sheriff delivered the usual certificate of sale, which had been filed in the clerk’s office of Westchester county. The defendant answered, admitting all the facts alleged as to the recovery of the judgment, against Leonard Travis, and the issuing of execution thereon, and the sale of the land by the sheriff, and denied all other allegations of the complaint. The rule applicable to this -class of actions is well settled. They can be maintained only where the pretended title, which it is alleged constitutes a cloud or the proceeding which it is apprehended will create one, is apparently valid on its face, and the party in possession will be compelled to resort to extrinsic evidence to show the invalidity of the pretended title, and to defend his own. Lehman v. Roberts, 86 N. Y. 232 ; Bockes v. Lansing, 74 id. 437; Smith v. Reid, 134 id. 577, 578; 48 St. Rep. 156. In this case, assuming, as we must, on this appeal, that the facts alleged in the complaint are true, the proceedings under which the defendant acquired the sheriff’s certificate were apparently valid; and if the sale had been perfected, •and the defendant had received a deed for the land, he would, in an action to recover its possession, have established a prima facie case by the production of the record of the proceedings resulting •in the sale. On the other hand, the plaintiff’s title was apparently subject to the judgment, and extrinsic evidence was necessary to show that that apparent title was not the real title. Upon the record, Leonard Travis, the judgment debtor, was the apparent owner of the land from October 29, 1877, to May 13, 1891. The judgment, therefore, apparently attached as a lien in August, 1888, when it was docketed in Westchester county. To prove that what was thus apparent was not the real fact, the plaintiff alleged that Leonard had conveyed the land to Bernard Travis in 1885, and that the deed had been lost, and that the deed of 1891 was but a substitute for the lost conveyance. These facts created a case within the jurisdiction of a court of equity.

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


text:
    William W. Rider, Resp’t, v. City of Mt. Vernon et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Municipal corporations — Actions—Limitations.
    A provision of a city charter, prescribing a special limitation of actions against the city for personal injuries, is valid.
    3. Same — Contractor.
    Such provision is not available as a defense to the person who created the cause of the injury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      David Swits, for app’lt City of Mt. Vernon; Isaac N. Mills, for .app’lt Borgwald; William M. Safford, for resp’t.
   Brown, P. J.

The plaintiff was injured by the upsetting of his wagon while driving on one of the public streets of the city of Mt. Yernon on the night of August 6, 1893. The accident was caused by driving upon a heap of sand which had been deposited in the street by the defendant Borgwald, who, as a contractor, was ■erecting a building upon land adjoining the street. The testimony was ample to establish the negligence of the defendants, and the freedom, from negligence of the plaintiff. The charter of the city (Laws 1892, chap. 182, § 164), provides as follows:

“All claims against the city for injuries to person or property claimed to have been caused or sustained by defects, want of repairs or obstructions from snow or ice or other causes in the highways, streets, sidewalks or crosswalks of the city, shall be presented to common council within three months after the said injury is received. Such writing shall describe the time, place, cause and extent of the injury so far as then practicable, verified by the oath of the claimant, if practicable, or otherwise if not, the omission to present said claim as aforesaid within three months shall be a bar to any claim or action therefor against the city, and no-action shall be commenced against said city on such claim until after two mouths from the presentation of said claim.”

The plaintiff’s injury was received on August 6, 1893, but the claim against the city was not presented to the common council until November 21st. It bore date and was acknowledged on November 13th, and was delivered to the city clerk on November 15th. The counsel for the city seasonably moved to dismiss the complaint on the ground that the claim was not presented within three months after the injury was received, which motion was denied, to which ruling exception was duly taken. It was essential to the maintenance of the action against the city to prove that the-provision of the charter which I have quoted had been complied with, and the failure to serve the claim upon the common council within three months after the injury was received was fatal to the plaintiff’s case. Olmstead v. Town of Pound Ridge, 71 Hun, 25 ; 53 St. Rep. 849; Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep. 482. The contention of the respondents that a statute of limitation must be uniform throughout the state, and can only be established by a general act of the legislature, has no support in the constitution or. the decisions of the courts. There is no provision of our state constitution which requires that laws shall be uniform in their operation throughout the state, and the whole matter of municipal liability is subject to legislative control. The legislature may prohibit all actions of this character against municipalities, and it may impose such, conditions precedent to the maintenance of such actions as it sees fit; and it may prescribe one limitation for one city, and another period for others. Curry v. City of Buffalo, supra. It was error, therefore, to deny the motion to dismiss the complaint against the city, and the exception to that ruling must be sustained.

The failure to serve the claim for injuries upon the common council of the city is not, however, available as a defense to the-defendant Borgwald. The liability of this defendant was not alone-a joint liability, but a'several one. All who caused the injury were liable, and could be sued separately, or all could be joined in one suit. The jury could have found a verdict against one defendant, and acquitted the other, and the court could have dismissed the action against the city, and retained it against Borgwald. In fact, as originally brought, the action was also against the owner of the property upon which the building was being erected, and was dismissed as against him upon the trial, but that fact did not affect the right of the plaintiff to proceed with the action against, the other defendants. This court has the same power as the trial court, and we may sustain the judgment as to one defendant and reverse it as to the other. We have examined the exceptions taken by the defendant Borgwald, but find none that affect the validity of the judgment against him. The judgment against the city of Mt. Yernon and the order denying the motion for a new trial as to such defendant must be reversed, and the complaint dismissed, with costs. The judgment and order against Borgwald must be affirmed, with costs.

All concur.