text:
    Andrew J. Shiels et al., Resp’ts, v. Sigismund B. Wortmann et al., App’lts.

      (Court of Appeals,

      Filed April 21, 1891.)

    1. Extea allowance.
    This court has no jurisdiction to review the discretion of the court below in granting an extra allowance where no rule of law is violated or in refusing it, unless such refusal was based on a want of authority.
    2. Same—Appeal—Re-akgument.
    Where the general term has decided that a party is entitled to an extra allowance, to be settled by the special term, and on the subsequent appeal from the order of the special term the general term concludes that no extra allowance should be made, its decision is not subject to review in this court.
    Appeal from order W the supreme court, general term, second department, reversing order granting an extra allowance.

      Edward W. S. Johnston, for app’lts; Wm. J. Gaynor, for resp’ts.

       See 32 N. Y. State Rep., 1103.

   Earl, J.

The facts of this case were such that the court below, in the exercise of its discretion, could have granted or refused an extra allowance to the defendants. They made a motion at a special term for an extra allowance, and it was denied upon the ground that the action was not difficult and extraordinary. Upon an appeal to the general term this order was reversed, upon the ground that the case was a proper one for an extra allowance, and it was there ordered that the motion be remitted to the special term, “to be settled as to the amount of the extra allowance,” and thereafter the special term, after hearing counsel for both parties, made an order granting the defendants an extra allowance of $500. The plaintiffs appealed from that order to the general term where it was reversed and then the defendants appealed to this court.

We have many times decided that this court has no jurisdiction to review the discretion of the court below in granting an extra allowance where no rule of law is violated, or in refusing an extra allowance unless such refusal has been based upon a want of authority, thus presenting a question of law.

It does not appear upon what ground the order appealed from was based. If the judges composing the general term, after deciding upon the prior appeal that the defendants were entitled to an extra allowance, upon the subsequent appeal changed their minds, and concluded that no extra allowance should be made, we know of no reason why they could not do so without subjecting their conclusion to review in this court. Having once decided that the defendants were entitled to an extra allowance, they could have granted a re-argument and changed their decision. But having ordered the motion to be heard at special term, when it came before them the second time, they could, in the exercise of their discretion, reach a different conclusion from that which they had come to upon the prior appeal; and in holding that the defendants were entitled to no extra allowance they were exercising a discretion which cannot be reviewed in this court.

But it is more probable that upon the last appeal the judges of the general term came to the conclusion that the extra allowance granted at the special term was too large, and for that reason reversed the order, and if that was the ground upon which their decision was based, it was clearly discretionary and not subject to review here. So that, in any view that can be taken of this case, we have no jurisdiction to review the order appealed from.

The application should be dismissed, with costs.

All concur, except Gray, J., absent


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Nelson E. Whitney, Resp’t, v. The Town of Ticonderoga, App’lt.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    1. Negligence—Highways—Laws 1881, chap. 700, § 1.
    The impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway, and in either case the roadway is “ defective,” within the meaning of chap. 700, Laws 1881.
    3. Same—Road bcbapbb left in road by commissioner.
    Plaintiff, by his complaint, alleged in substance that the highway commissioner carelessly placed and left a road scraper in the highway, thus causing the injury, which occurred after dark, plaintiff not knowing that it was there, and defendant answered that it-belonged to the town in which it was placed, and that defendant’s commissioner used due diligence in placing and leaving it so as to prevent accident, etc. The only evidence to show that the commissioner left it where it was at the time of the injury,_ or caused it to be placed there, or knowing it was at that place permitted it to remain there, was that after it had been removed he pointed out to a witness the place where it was at the time of the injury. Held,, that from the pleadings and this evidence, the conclusion was’warranted that the requisite care was not observed for the safety of public travel in leaving the scraper at that place in the highway.
    (Parker, J., dissents.)

      Appeal from judgment entered upon order of the general term of the third judicial department, affirming judgment entered on ' verdict in favor of the plaintiff.
    The action was brought to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the commissioner of highways of the defendant. And it appeared that on the evening of May 4,1888, the plaintiff, in a Frazer cart drawn by a horse driven by him in Main street in the village of Ticonderoga, was thrown out and injured. He was going southerly, and after crossing a bridge over the outlet of lake George, he pulled a little to the right, the home sprang to the left, the wheel struck something on the right and the left wheel locked into and went over the wheel of another vehicle going north. He was thrown out to the right. Upon the street near the right sidewalk at that place was a road scraper used for working highways. It was an apparatus having four wheels, was upwards of four feet in width, and, exclusive of the pole, something more than seven feet in length. The end of the pole or tongue was ninety feet from the bridge, and the north end of the body of the scraper was eleven feet further south. The width of the road-way of the bridge was eighteen and one-half feet, divided into two by a partition timber in the center; and the width of the street for ninety feet south of the bridge continued about the same, and there it commenced to widen and continued to do so until it reached the width of sixty-six feet. And the evidence tended to prove that at the place where the body of the scraper was the distance between the sidewalks was about thirty feet, but the divergence of the outer line was on the east side only. The plaintiff had a verdict

      Richard L. Hand, for app’lt; Chester B. McLaughlin, for resp’t.

       Affirming 34 N. Y. State Rep., 950.

   Bradley, J.

The evidence warranted the conclusion that without fault of the plaintiff his injury was occasioned by the road scraper in the street. At the time of the occurrence it was dark, and the plaintiff had no knowledge that the machine was there. In its absence the street was suitable for driving up near to the sidewalk. The only ground for liability of the defendant is that furnished by the statute, which provides that “ the several towns in this state shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such towns, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.” Laws 1881, chap. 700, § 1.

It is urged on the part of the defendant that "the street in question was not defective within the meaning of the statute, because there was no defect in the bed of the road. It is true that there was no defect in the structure of the roadway, but the highway, as such, was in a defective condition. The term “ defective highways ” was used in reference to their condition for public travel upon them, which their designation as highways imports, and in view of the purpose for winch they are established and maintained. And the impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway. In either case the highway is in a defective condition, and evidently such condition is within the meaning of the term “ defective highways,” as used in the statute. There was nothing contrary to these views in the doctrine of Hewison v. The City of New Haven, 34 Conn., 136.

To charge the defendant with liability in the present case it was essential that the plaintiff’s injury be attributable to the negligence of the commissioner of highways of the town; and whether or not that fact was supported is the main question. The plaintiff in his complaint alleged in substance that the highway commissioner carelessly placed and left the scraper in the highway, thus causing the injury. And by its answer the defendant alleged that the road scraper mentioned in the complaint was the property of the town or of the road district in which was Main street; that the scraper was at the time and place of the alleged injury upon the west line of the highway outside the portion of it travelled by teams; and “that defendant’s said commissioner of highways used due and proper diligence and care in the placing and leaving of said scraper to prevent accident, impediment or danger to passengers with horses and vehicles upon said highway.”

The pleadings were put in evidence at the trial. It was necessary to make it appear that the commissioner left the machine where it was at the time of the injury or. caused it to be placed there, or knowing it was at that place permitted it to remain there. The only evidence upon that subject in addition to the matters alleged in the answer is in the fact that subsequent to the accident and after the scraper had been removed from there the commissioner pointed out to a witness the place where it was in the highway at the time in question. While the averment in the answer was not in express terms that the commissioner put the scraper at that particular place, such in view of the allegations in the complaint was fairly its import notwithstanding the denial by the answer, except as therein admitted, of the allegations of the complaint And when the pleadings took their place with other evidence upon the trial, the question whether he “ used due and proper diligence and care in the placing and leaving ” the machine there, was subject to such qualification as the circumstances presented by the evidence might furnish. And from them the conclusion was warranted that the requisite care was not and could not have been observed for the safety of public travel in leaving the scraper at that place in the highway. If the commissioner did not have the control of the scraper and had not caused it to be placed and left where it was at the time of the plaintiff’s injury, there was no occasion for the defendant to insert in its answer the matter before mentioned in that respect. The allegation was such as to relieve the defendant and its supervisor, who verified the answer, from the imputation of denial of the fact that the scraper was left there by the commissioner. And subject to the qualification stated in connection with it, the allegation may be treated as an admission that it was left at that place by him. People v. Northern Railroad Co., 42 N. Y., 217; Clark v. Dillon, 97 id., 371.

Then as the commissioner had the care and superintendence of the highways in the town, and was charged with the duty of giving directions for repairing them and of causing them to be kept in repair, (1 R. S., 501, § 1) and as the scraper belonged to the town or one of its road districts, and was employed in working the highways, it may properly have been under his control. Laws 1883, chap. 398 ; Laws 1886, chap. 344.

And that fact, in view of the matter so alleged in the defendant’s answer, tended to furnish the inference that the commissioner had the control of the machine, and left it at the place in question, and the jury were permitted to consider, by way of its corroboration, the omission of the defendant to call him as a witness or to offer any evidence on the subject. Reynolds v. Sweester, 15 Gray, 78 ; People v. Dyle, 21 N. Y., 578; Gordon v. People, 33 id., 501.

There was some evidence in support of every fact essential to recovery by the plaintiff, and the question of its weight is not here for consideration.

It follows that there was no error in the denial of the motion for nonsuit.

The judgment should be affirmed.

All concur, except Parker, J., dissenting, and Potter and Brown, JJ., not


author: Haight, J.

text:
    Patrick M. Hannigan et al., App’lts, v. Honorah Morrissey, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    1. Partnership—Assumption op purchase price due on assets contributed BY THE PARTNERS.
    Where two persons doing business at different places form a copartnership, each contributing to the capital of the firm the stock of goods he had on hand on which there were amounts owing for purchase money, the goods having been transferred to the firm, and the firm having assumed and agreed to pay the balance of the purchase price unpaid, the agreement of the firm will be deemed to have been made for the benefit of the creditors holding such claims, and an action may be maintained by such a creditor against the firm upon such agreement.
    2. Same—Evidence.
    Such an agreement is not dependent upon the testimony of either of the partners, but may be established from such facts and circumstances as would raise an implication that such an agreement was made, and as bearing upon such implication the contemporaneous acts and subsequent conduct of the parties are material.
    Appeal from an order of the general term of the superior court of the city of Eew York, reversing a judgment entered upon the report of a referee and granting a new trial.

      John W. Boothby, for app’lts; James C. Foley and M. A. Kellogg, for resp’t.

       Reversing 23 J. & S., 570.

   Haight, J.

This action was brought to recover pay for goods sold and delivered. A portion of the claim is

The controversy is over an item of $1,394.72, for goods sold to the defendant James 0. Allen before he had entered into co-partnership with the defendant Morrissey.

It appears that the defendant Allen and Morrissey were each engaged in the dry goods business; one having a small store upon Third avenue in the city of New York, and the other at Green-point. Desiring to unite their business they entered into a co-partnership, taking a store on Third avenue. The articles of co-partnership provide that the parties are to contribute in goods and money to the partnership business, as the books of ' the firm will show.

The referee has found that it was mutually understood and agreed that the firm should assume and pay the debts and liabilities of each of the parties then owing by them respectively for the goods so contributed to the firm, and ordered judgment for the plaintiffs.

The general term reversed the judgment and ordered a new trial. Truax, J., in delivering the opinion of the court, says that there is no evidence to sustain this finding.

The order reversing the judgment and granting a new trial does not state that it was made upon a question of fact. We must therefore assume that it was made upon questions of law. Code, § 1338. If, however, there is no evidence to sustain the finding it would be a ruling upon a question of law. Code, § 993.

The question we are therefore called upon to review is whether there is any evidence to sustain the finding of the referee. It is true, as stated by the general term, there is no direct testimony from either party of any such express agreement, but that there was such an agreement is not dependent upon the testimony of either of the partners. It may be established the same as any other agreement, from such facts and circumstances as will raise an implication that such an agreement was made, and as bearing upon such implication the contemporaneous acts and subsequent conduct of the parties become material.

There is nothing in thé articles of co-partnership or the books kept by the firm that bears upon the question. The husband of the defendant Morrissey was her authorized agent, and as such conducted the business on her part and took charge of the financial affairs of the firm. It does appear that the understanding was that each of the partners should take an account of his stock in his old store, ascertain the value thereof, and deduct from such value the amount that he owed upon it for its purchase, and that the surplus should be regarded as his capital in the firm. Neither of the parties appear to have had any other capital than that represented by their stock of goods. Neither partner by the articles of co-partnership was permitted to draw more than twenty dollars per week. This sum was doubtless intended for the personal expenses of themselves and their families. It would not go far in the extinguishment of the debts owing by them, respectively, upon their stock of goods.

It further appears that they opened an account at a bank in the name of the co-partnership, in which tkh money derived from the sale of goods was deposited; that from time to time Morrissey drew checks in the name of the firm upon this account in payment upon the old indebtedness of the defendant Morrissey upon the stock of goods contributed by her. And again it appears that in May or June Morrissey received from the plaintiffs a bill containing the items of goods purchased from them by the defendants, including the old account against Allen for the goods sold him, and there is evidence that he subsequently agreed to pay the same; that difficulties arose between the partners, and about the first of July the defendant Morrissey purchased out the interest of the defendant Allen, paying him therefor $125, the defendant Morrissey agreeing to take all the stock of goods, accounts and property of the firm and assume all its liabilities; that the stock of goods contributed by the defendant Allen inventoried at $1,603.45, and that substantially that amount was owing thereon.

The difficulty between the co-partners arose over the claim of Morriss y that Allen had contributed no capital It is not claimed that the firm had suffered any losses, and the result is that under the claim as now made by the defendant Morrissey she gets the entire stock of goods contributed by the defendant Allen for the $125 paid him to retire from the firm. The firm only continued to do business about sixty days, and in the absence of any losses it would hardly be supposed that the defendant Allen would contribute goods of the inventoried value of $1,600 and then retire from the firm upon receiving $125, unless he had understood that the goods contributed by him were to be paid for by the defendant Morrissey.

We agree with the general term that the bare promise of the defendant Morrissey or of her agent on her .behalf to pay Allen’s indebtedness to the plaintiffs, not being in writing, would not be binding upon her. But the fact that such promise was made in connection with the other facts appearing in the case becomes quite significant as bearing upon the question as to whether or not there was an agreement that the firm should assume the individual liabilities of each member upon the goods contributed by each. So, also, is the subsequent conduct of Morrissey in the payment of her individual indebtedness out of the money of the firm. Taking all of these facts together they produce a chain of circumstances from which we think the inference drawn by the referee is permissible, and that it cannot be properly said that there was no evidence to support his finding.

As we have seen each partner contributed to the capital of the firm the stock of goods he had on hand on which there were amounts owing for purchase money. The goods having been transferred to the firm and the firm having assumed and agreed to pay the balance of the purchase price unpaid, the agreement of the firm will be deemed to have been made for the benefit of the creditors holding such claims, and an action may be maintained by such a cred-tor against the firm upon such agreement Arnold v. Nichols, 64 N. Y., 117.

The case is, therefore, distinguishable from that of Wheat v. Rice, 97 N. Y., 296, and Serviss v. McDonnell, 107 N. Y., 260; 12 N. Y. State Rep., 485, and kindred cases.

The order of the general term should be reversed, and the judgment entered upon the report of the referee affirmed, with costs.

All concur, except Vann and Brown, JJ., absent


author: Parker, J.

text:
    John A. Getty, Resp’t, v. The Town of Hamlin et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    INegligence—Highways—Evidence of repairs to bridge subsequent TO ACCIDENT NOT ADMISSIBLE.
    On the trial of an action for injuries occurring through a defective approach to a bridge, plaintiff was allowed to prove that subsequent to the accident guards were erected, and by the commissioner that he erected them because he deemed that they were needed. Held, error.
    Appeal from judgment of the general term of the supreme court, fifth department, entered on an order which affirmed a judgment in favor of plaintiff, entered on a verdict.

      Cassius C. Davy, for app’lts ; J. D. Declcer, for resp’t.

       Reversing 28 N. Y. State Rep., 275.

   Parker, J.

This action was brought to recover damages which "the plaintiff insists were occasioned by a defective highway. At "the point in question Sandy Creek is on the boundary line between the town of Hamlin, in the county of Monroe, and the town of Kendall, in the county of Orleans, over which a bridge is constructed which constitutes a part of the highway leading from one town into the other, and because of such situation it is asserted that by statute the towns are jointly liable to keep such bridge and its approaches in repair, and for a failure to perform that duty they are liable to respond in damages for such injuries as may have been occasioned because of an omission to perform such obligation.

The complaint alleges that on and prior to the 26th day of April, 1884, the date of the happening of the accident, the highway on the north end or side of the bridge was greatly out of repair, the abutments of the bridge having become dilapidated and fallen out so that the road-bed in the highway supported and kept in place by the abutments was caved in, broken out and greatly impaired; that there were great holes in the highway made by the earth caving in and sliding out of the road-bed, caused in part by the impairment of said abutments, so that said bridge and approaches were in an unsafe and dangerous condition for travel. The answer denied that the approaches to the bridge and the bridge was in an unsafe and dangerous condition for' public travel at the time of the accident, and that question was sharply litigated on the trial.

As to the happening of the accident, the plaintiff testified: “Before I got to the bridge I observed on the west side of the road a pile of stave bolts piled up perhaps six feet or thereabouts. Before I passed the stave bolts I saw the bridge, and saw as I came opposite , this pile of stave bolts that the bank had slid off on the east side of the embankment at the north end of the bridge. I reined my horses to one side of the road as far as I could, and I was driving with the greatest of care to avoid this hole, because the approach to the bridge is very narrow. As I approached the stave bolts I came opposite a pile of sand piled over in the lot; white sand, lake sand, I suppose, on the west side of the road, on the north side of the creek. Just then my off mare shied violently and suddenly against the other one and crowded her across on the east side of the road and she stepped her leg into this hole and they both sprang on the bridge on the jump, and the wheel came against the bridge timber, which was exposed six or eight inches. I remember nothing more. I couldn’t tell how wide the road-bed, the natural roadway in its intact condition was; but the bridge where you go on is thirteen feet; the bridge is thirteen feet between the railing; the road widens out as you go north. I should say the cave-off on the east side of the road was within six or eight inches of the track made by the wheel. The bunt beam of the bridge was exposed inside of the east railing perhaps two^ feet” He also testified that on the east side of the bridge, “ there was no guard; no railing of any kind.”

Against defendants’ objection and exception the plaintiff was further permitted to show that subsequent to the accident guards were erected, where they were placed, and whether the commissioner deemed their erection necessary, as will appear from the following questions and answers: “ Q. These guards that are there now are put upon this retaining wall, are they not ? A. Inside of the retaining wall, between the bridge and the retaining wall; just, inside of the railing; they are not fastened into the retaining wall. Q. You put up these guards on the east side and on the west side because you deemed guards were needed there, did you ? A. Yes, sir.”

Again plaintiff’s testimony tended to show that the retaining wall on the east side had become out of repair and the upper part of it fallen off, thus permitting the earth to slide down, resulting in the holes or depressions complained of. This evidence was controverted by witnesses on the part of the defendant, and against defendants’ objection that the evidence was incompetent and immaterial the plaintiff was further permitted to show that after the happening of the accident a new abutment and retaining wall was built in the place of the wall which the plaintiff contended was SO' out of repair as to cause the formation of the holes and depressions in the road-bed complained of.

The witness was also asked: "Q. The retaining wall which you put on the east side, you put there because you deemed one was needed,” to which, against defendants’ objection and exception, the plaintiff, by direction of the court, answered: “Yes, sir; the old abutment under the north end of the bridge we took down because it was out of repair, and built a new one ; I deemed a new one was needed for freshets; I built a new abutment there because I deemed a new one was needed.”

It has been so frequently determined by this court that evidence of this character is not admissible against a defendant for the purpose of proving negligence that further comment need not now be made. Corcoran v. The Village of Peekskill, 108 N. Y., 151; 13 N. Y. State Rep., 105; Dougan v. Champlain Co., 56 N. Y., 1; Baird v. Daly, 68 id., 547. And, as Judge Earl remarks in Corcoran’s case, “ While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.”

Our attention has been called to other rulings of the trial court which the defendants assign for error, but, as the rulings already considered demand a reversal of the judgment, they need not be discussed.

The judgment should be reversed.

All concur, except Bradley and Haight, JJ., not voting.


author: Vann, J.

text:
    John R. Williams, App’lt, v. The Delaware, Lackawanna & Western R. R. Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed, April 21, 1891.)

    Appeal—New trial.
    Where an order of the general term, granting a new trial, in an action tried before a jury and presenting a conflict of evidence, may have been made upon the facts, although the record does not show that it was, it cannot be reviewed upon appeal to this court.
    2. Same.
    In such a case, even if it conclusively appears that the decision of the general term was based on questions of law only, the order is not appeal-able to this court, unless it also appears that the court passed upon the facts favorably to the appellant.
    Appeal from an order of the general term of the supreme court in the fourth judicial department, reversing a judgment entered on a verdict in favor of the plaintiff, and also reversing an ■order denying a motion for a.new trial.
    Action to recover damages sustained by the plaintiff, as he .alleged, through the negligence of the defendant
    The facts, so far as they are material, appear in the opinion.
    E Countryman, for app’lt; Louis Marshall, for resp’t.

       See 49 Hun, 612, mem.

   Vann, J.

After a verdict had been rendered in favor of the ■plaintiff, upon a substantial conflict in the testimony, the defen d-.ant moved for a new trial on a case containing all the evidence and the exceptions, but the motion was denied. Judgment was thereupon entered on the verdict, and the defendant appealed therefrom to the general term, and also from the order denying the motion for a new trial. The general term reversed both the judgment and the order, and in its order of reversal stated “ that the court erred in refusing to nonsuit the plaintiff,” but did .not state how any other question, either of law or fact, was determined. The plaintiff appealed to this court from the order of reversal, and stipulated that, if it should be affirmed, judgment absolute should be rendered against him.

Where an order of the general term granting a new trial, in an action tried before a jury and presenting a conflict of evidence, may have been made upon the facts, although the record does not show that it was, it cannot be reviewed upon appeal to this court, because it is impossible to say, from an inspection of the record,, that the court, in making the order, did not direct a new trial in the exercise of its discretion to do so upon a review of the facts. Wright v. Hunter, 46 N. Y., 409 ; Sands v. Crooke, id., 564; Dickson v. Broadway & Seventh Avenue R R. Co., 47 id., 507; Downing v. Kelly, 48 id., 433 ; Courtney v. Baker, 60 id., 1; Wagner v. Long Island R. R. Co., 70 id., 614; Whitson v. David, 81 id., 645; Bronk v. N. Y. & N. H. R. R. Co., 95 id., 656; Pharis v. Gere, 107 id., 231; Randall v. Randall, 114 id., 499; 23 N. Y. State Rep., 845.

In such a case, even if it conclusively appears that the decision of the general term was based on questions of law only, the order is not appealable to this court unless it also appears that that court, passed upon the facts favorably to the appellant, because it might result in depriving the party against whom the judgment at circuit was rendered of the review by the general term of the facts, to which the law entitles him. Harris v. Burdett, 73 N. Y., 136; Snebley v. Conner, 78 id., 218; Kennicutt v. Parmalee, 109 id., 650 ; 15 N. Y. State Rep., 515.

In Harris v. Burdett, supra, the court said: “ Where exceptions-have been taken, and a motion for a new trial has also been made upon the minutes or at special term, the unsuccessful party may waive any further review upon the facts and appeal to the general term from the judgment and this appeal will bring up the exceptions only. Or, where an appeal is taken from the order refusing a new trial, as well as from the judgment, the general term may reverse the judgment upon the exceptions and at the same time affirm the order refusing a new trial upon the facts. In either of the cases supposed the order of the general term is appealable^ But in no other will such an appeal lie where the trial has been by jury, if controverted and material questions of fact are involved and a motion for a new trial has been made on the evidence.”

In Voisin v. Commercial Mutual Ins. Co., 123 N. Y., 120, 131;. 33 N. Y. State Rep., 160, the court referring to Harris v. Burdett, said that it was not intended to hold in that case “ that where the general term have certified in their order that they have examined the facts, and have determined that no reason appears therein for granting a new trial, but that this court have power to review its-determination upon the questions of law in the case.”

Upon the argument of this case when the question was raised as to the appealability of the order, the counsel for the appellant, recognized its force, and himself moved that the appeal be dismissed, so that the plaintiff, as he could not obtain a review in this court, could go back to the circuit, and re-try the case, but. the motion was earnestly opposed by the counsel for the respondent, who insisted that the order should be affirmed, and the litigation ended. The question is presented, therefore, whether the appeal should be dismissed, or the order affirmed, and judgment. absolute rendered against the plaintiff upon the stipulation contained in his notice of appeal.

In each of the cases cited the appeal was dismissed except in Snebley v. Conner and Kennicutt v. Parmalee, where the court refused to dismiss, and affirmed the order upon the ground that the practice is well established and known; but it also took into account the character of those cases, and presumably held that the appeals, even if they could have been heard, would have been fruitless.

In Sands v. Crooke, supra, the court said that it was unnecessary to examine the exceptions except to determine whether judgment absolute should be rendered upon a valid exception being found, or the appeal dismissed if no exception should be held to have been well taken.

In Dickson v. Broadway & Seventh Ave. R. R. Co., supra, while the appeal was dismissed, the court intimated that thereafter if parties did not elect to apply for leave to dismiss such appeals, but insisted upon the experiment of submitting the case to the court, they might be compelled- to abide by their stipulation, and have judgment absolute against them.

In Courtney v. Baker, supra, it was said that the appellant should have proceeded to a new trial, or should have procured the order of the general term to be so settled as to deny the motion for a new trial on the evidence, and thus show on the record that it was granted on the exceptions only.

In Bronk v. N. Y. & N. H. R. R. Co., supra, although both parties desired that the court should entertain the appeal, it refused to do so.

In Pharis v. Gere, supra, an order was made dismissing the appeal, unless, within a limited time, the appellant should procure “ the order of reversal to be so amended as to give to this court jurisdiction to hear the appeal.”

It is necessary that parties should heed the repeated admonitions of the court that such appeals as the one under consideration will not be entertained unless it appears from the record, of which the opinion forms no part, that the order was affirmed as to the facts, or the appeal therefrom dismissed, and that the new trial was granted upon the exceptions only. If parties persist in bringing appeals in disregard of this well established and vital point in practice, it may become necessary to affirm the order instead of dismissing the appeal therefrom, in order to impress upon them and others the futility of such a course. However, no invariable rule upon the subject has yet been laid down and we do not feel called upon to announce such a rule in deciding this controversy. ,

We are of the opinion that under all the circumstances justice will be promoted in this case by simply dismissing the appeal, with costs, and it is ordered accordingly.

All concur, except Follett, Ch. J., not sitting, and Brown, J., absent.


author: Follett, Ch. J.

text:
    Constance B. Price, App’lt, v. Walter J. Price et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

       1. Dower—Marriage—After five years absence. ,
    Where a wife absents herself from her husband for five successive years without being known by him to be living within that time, and he contracts a second marriage, which is annulled in an action between them, because the first wife is living, such second wife is not entitled to dower in the real estate owned by him at the date of the entry of judgment of nullification.
    3. Same—Annulment of marriage.
    Sections 8 of 1R. S., 740, and §48 of 3R.S., 146, denying the wife’s right to dower when divorced for her adultery, do not relate to the rights of persons whose marriages are annulled, but only to those of persons divorced for adultery.
    Cross appeals from an interlocutory and final judgment of the general term of the supreme court in the first judicial department, awarding dower to the plaintiff.
    April 23d, 1839, Walter W. Price and Susanna Butler intermarried in England and lived together as husband and wife at Birmingham for about one year, when he came to the United States where he resided until his death.
    July 1, 1865, Price and Constance Bridget Tallón, the plaintiff in this action, intermarried at the city of New York, and lived together as husband and wife until July, 1871, having two children born unto them, who survive.
    In May, 1873, Price began an action in the supreme court of this state to have his last marriage annulled on the ground that the first wife was then living, which resulted in a judgment entered April 15, 1874, annulling the marriage. The court found that the first wife Susanna had absented herself from her husband since 1843, had not been heard of by him for more than five years, and that the marriage between Walter W. Price and Constance B. Tallón was contracted in good faith, believing that his former wife was dead. It was adjudged that their marriage was null and void, but “ only from the time that its nullity is hereby pronounced, to wit, from and after the date of this judgment.” It was further adjudged that the children of the marriage were legitimate and entitled to succeed in the same manner as legitimate children to the real and personal estate of the father and mother or either of them. At. the date of the entry of this judgment Walter W. Price owned the real estate described in the interlocutory judgment in this action, about fourteen acres of which 0 he conveyed in July, 1875, to Walter J. Price. June 6, 1876, Walter "W. Price died seized of all of said real estate except that so conveyed, which he disposed of by will. This action was begun by the plaintiff June 7, 1880, to have dower admeasured in the real estate of which Walter. W. Price .was seized at the date of the entry of the judgment' annulling the marriage. The defendants are the devisees, grantees and mortgagees of the devisees of Walter W. Price. They set up in their answers, among other defenses, (1) That the marriage was null and void and had been so adjudged ; (2) That February 25, 1874, the plaintiff received from Walter W. Price a sum of money in satisfaction of all claims to dower in his property.

      Charles Jones„ for pl’ff; David Wilcox and James R. Marvin, for def’ts.

       Reversing 37 N. Y. State Rep., 110.

   Follett, Ch. J.

The primary question underlying this case is whether, when a wife absents herself from her husband for five successive years without being known by him to be living within that time, and he contracts a second marriage which is annulled in an action between them because the first wife is living, such second wife is entitled to dower in the real estate owned by him at the date of the entry of the judgment of nullification ?

In this state the right to dower arises out of the rules of the common law, except in so far as they have been changed by our statutes.

By the common and canon law a marriage by one having a spouse living and undivorced, though the spouse had been absent and believed to be dead, was void ah initio, and the person contracting a second marriage was guilty of a felony. 1 Scrib. Dow., 115, § 5; 1 Black. Com., 436; 2 Steph. Com., 11th ed., 256; 2 Kent’s Com., 79 ; 1 Bish. M. & D., § 299.

An examination of the legislation on the subject of marriages between persons, one of whom has a spouse living, becomes necessary to enable us to determine whether the rule of the common law has been changed.

By chapter XI of the first year of James the First, it was enacted that a person marrying a second time, whose husband or wife had been continually absent for seven years immediately preceding the second marriage and not known by such person to be living within that time, should not be guilty of bigamy. The rule prescribed by this statute has' remained the law of England to this day. 4 Steph. Com., 11th ed., 90. A statute containing the same provisions, though reducing the period of absence to five years, was enacted in this state February 7, 1788 (2 J. & V., 214), which with slight modifications has been continued in force to the present time. 1 Bev. Acts of 1801, 122; 2 Bev. Laws of 1813, chap. 102; 2 B. S., 687; Penal Code, §§ 298, 299.

It was held in this state that the statute concerning bigamy did not render such a second marriage valid. Fenton v. Reed, 4 Johns., 52; Williamson v. Parisien, 1 Johns. Ch., 389, and such is the rule in England. Shelf. M. & D., 89, 223, 230, 479.

Such was the condition of the law when the Bevised Statutes of this state were enacted, and, experience having proved that the statute in respect to bigamy had induced the contraction of second marriages by persons having spouses who had been absent for five years and believed to be dead, which, after the return of the absent husband or wife, were found to be void and the issue illegitimate, it was, for the purpose of alleviating some of these consequences, enacted. 2 B. S., 139.

“ Sec. 5. No second or other subsequent marriage shall be contracted by any person, during the lifetime of any former husband or wife of such person , unless,” * * * and “every marriage contract in violation of the provisions of this section shall, except in the case provided for in the next section, be absolutely void.”
“ Sec. 6. If any person whose husband or wife shall have absented himself or herself, for a space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from t'he time that its nullity shall be pronounced by a court of competent authority.”

It was also provided, 1 R. S., 142:

“ Sec. 20. The chancellor (supreme court) may, by a sentence of nullity, declare void the marriage contract for either of the following causes existing at the time of the marriage:
****#**•
“ 2. That the former husband or wife of one of the parties was living; and that the marriage with such former husband and wife was then in force.”
# * * * * * *
“ Sec. 23. When it shall appear and be so decreed that such second marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue of such marriage born or begotten before its nullity be declared shall be entitled to succeed in the same manner as legitimate children to the real and personal estate of the parent who, at the time of the marriage, was competent to contract; and the issue so entitled shall be specified in the sentence of nullity.”

By these provisions such marriages ceased to be void and became voidable and subject to be annulled, with the consequences incident to the annullment of marriages by the rules of the common law, except in so far as they were changed by the above sections and the two hereinafter quoted.

By the common law, neither dower nor curtesy arises from a voidable marriage, if it be annulled during the lifetime of the parties, and when annulled by the judgment of a competent court they are in the same situation in respect to each other, and to rights in the property of each other, as though a marriage had never been entered into, and the children born of it are illegitimate, unless legitimated by statute. Aughtie v. Aughtie, 1 Phill., 201; Cage v. Acton, 1 Ld. Raym., 521; Bish. on M. & D., §§ 116, 118, 690, 712; Bish. on H. & W., §§ 247, 479, 482; 1 Bright H. & W., 7, 322; 2 id., 366 ; 1 Roper H. & W., 332; Stewart M. & D., §§ 147, 429, 437.

And in the absence of a statute saving the right to dower, the dissolution a vinculo of a valid marriage, for the fault of either party, bars it. Barrett v. Failing, 111 U. S., 523; Frampton v. Stephens, 21 Ch. Div., 164; 14 Am. & Eng. Encly. Law, 537; 5 id., 921.

It is contended by the learned counsel for the plaintiff that the rule of the common law was altered by the sections of the Eevised Statutes hereinbefore set forth and by the two next quoted, which are the only ones relied on as effecting a change.

“ Sec. 8. In case of divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed.” 1 B. S., 740, § 8.
“Sec. 48. A wife being a defendant in a suit for divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate, or any part thereof, nor to any distributive share in his personal estate.” 2 R. S., 146, § 48.

The last section was repealed by chap. 245, Laws 1880, after it had been made a part of § 1760 of the Code of Civil Procedure.

In Wait v. Wait, 4 N. Y., 95, it was held that adjudgment dissolving a valid marriage for the adultery of the husband did not cut off the wife's inchoate right to dower in lands of which he was at the date of the judgment, or theretofore had been seized; and she having survived, dower was assigned. The court rested its decision on the ground that the sections denying a wife’s right to dower when divorced for her adultery by fair implication saved it when a divorce was granted for the adultery of the husband. The learned judge who wrote in the case last cited seems to have overlooked Charruaud v. Charruaud, 1 N. Y. Leg. Obs., 134; Day v. West, 2 Edw. Ch., 592; and Reynolds v. Reynolds, 24 Wend., 193, and the judgment has not escaped criticism, Moore v. Hegeman, 27 Hun, 68, aff’d 92 N. Y., 521; 2 Bish. M. & D., § 706, but the result reached by it has been lately confirmed by statute. Code Civ. Pro., § 1754.

The changes effected by the Eevised Statutes in the rights of parties entering in good faith into a marriage while one has a living and undivorced spouse who has been absent for five years and not known to be living, are (1) the marriage is not void from the beginning, but vbidable ; (2) when judicially annulled, it is only void from the date of the judgment; (3) when so annulled, the issue may be adjudged entitled to succeed to the estate of the parent who was competent to marry, in the same manner as legitimate children; (4) it has been held that while such a marriage remains unannulled the cohabitation of the parties is not adulterous, Valleau v. Valleau, 6 Paige, 207; also that the survivor is entitled to administration, White v. Lowe, 1 Redf., 376; and before the passage of the acts for the. protection of married women, that the husband.could hold and transfer the personal property of the wife. Cropsey v. McKinney, 30 Barb., 47.

We do not express the opinion that other changes than these mentioned have not been wrought, for we are only concerned with the claim that it has changed the common law in respect to the right of a wife to dower under such a marriage after it has been judicially annulled.

■ The absence of a husband or wife for five years, unheard of during that time, and who is believed to be dead, is not in this state a cause for an absolute divorce.

The effect of a judgment annulling a marriage upon the right of a wife to dower has never been determined in this state in any-reported case, except in the one at bar. In Spicer v. Spicer, 16 Abb., N. S., 112, the second marriage, through which the wife claimed dower, was never dissolved, and she survived her husband, nevertheless, dower was denied her. In Jones v. Zoller, 29 Hun, 551; 32 id., 280 ; S. C. sub. nom. Jones v. Fleming, 37 id., 228; rev’d. 104 N. Y, 418; 5 N. Y. State Rep., 695, the second marriage had not been dissolved and the wife survived her husband. In Brower v. Bowers, 1 Abb. Ct. App. Dec., 214, and Griffin v. Banks, 24 How., 213, rev’d. 37 N. Y., 621, the voidable marriages considered remained in force until the death of one of the spouses, and were never judicially annulled.

In the case at bar the learned general term rested its judgment-on the authority of Wait v. Wait, supra, which was decided upon the ground that the sections above quoted preserved the wife’s inchoate right of dower in case she was innocent and he guilty, but in the case at bar it was found and adjudged in the action wherein the marriage was annulled, that both parties contracted their marriage in good faith, believing that the husband’s former wife was dead; which judgment is declared by the statute to be conclusive between them. 2 R. S., 144, § 37.

The referee upon the trial of the issue in this action found, and the general term affirmed the finding, that both parties contracted their marriage in good faith. But we do not think those-sections (8 and 48) relate to the rights of persons whose marriages are annulled, but only to those of persons divorced for adultery. There now is, and always has been a broad distinction made by the common law, and in the statutes of this state, between actions brought to annul marriages, by reason of the incapacity of the parties to legally contract them, and actions brought for their dissolution by reason of acts committed after their due and legal solemnization. The former class was provided for by article second of the Bevised Statutes and the latter by the third and fourth articles of the same chapter. The same distinction is still preserved by the Code of Civil Procedure. Title 1, chap. 15, Code Civ. Pro.

Section 48 above quoted is contained in the third article, which relates to divorces a vinculo on the ground of adultery, and - has no application to actions or judgments annulling marriages for causes existing prior to their solemnization.

The word “ misconduct,” in the eighth section, 1 R. S., 740, has been held by this court to mean adultery, Van Cleaf v. Burns, 118 N. Y., 549 ; 29 N. Y. State Rep., 860, and the section is not applicable to this class of actions.

The plaintiff is not entitled at common law nor under the statutes of this state to dower in any of the lands described in her complaint

The conclusion reached renders it unnecessary to consider the other questions raised by the defendants’ appeals, of those presented by the appeal taken by the plaintiff.

The judgments and orders reviewed, subsequent to the judgment entered on the report of H. H. Anderson, referee, reversed, and the judgment entered on the report of H. H Anderson, referee, on the 9th day of August, 1888, dismissing the complaint, with costs, is affirmed, with costs to each of the defendants appearing by separate attorneys.

All concur.


author: Van Brunt, P. J.

text:
    Walter B. Hatch, Resp’t, v. Ebenezer Spooner et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. False Representations—Proof.
    In an action to recover damages sustained by false representations inducing the purchase of stock of a corporation, it is not essential for plaintiff's recovery that he testify that he relied solely upon the representations. Such reliance may be inferred from all the circumstances of the transaction.
    2. Same.
    In such an action fraud must be established by evidence necessarily leading to that conclusion.
    3. Same.
    Where it appears that the defendants did not necessarily know the financial condition of the company; that their familiarity may have been only with the manufacturing branch of the business, and that the representations were necessarily matters of opinion, a verdict in favor of plaintiff cannot be sustained.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      L. E. Sexton, for app’lts; Thos. Bracken, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages which the plaintiff claimed to have sustained by reason of certain representations made by the defendants to the plaintiff to induce the purchase of stock in a company, which representations were claimed to be false and fraudulent

The complaint alleges that in January, 1884, the defendants were owners and holders of the capital stock of a company called the Spooner Manufacturing Company, and that at this time the said company was insolvent and unable to pay its debts, which the defendants well knew, and for the purpose of obtaining money from the plaintiff represented and caused to be represented to him that the stock of the company was valuable stock, earning a good dividend, and that the same was a good stock to invest in, and was certain to return each year a net income of at least ten per cent on its capital stock, over and above all expenses.

■The complaint further alleges that the defendants agreed that in case he purchased stock in the company to the amount of $5,000 they would give him employment in the company; that the plaintiff, believing all the representations made by the defendants and relying thereon, purchased from them $5,000 of the stock of said company and entered into the employment of the company; that said representations were false, and upon the discovery of that fact the plaintiff tendered back the stock and demanded the return of his money, which was refused.

The defendants denied the representations, denied that the company was insolvent, and denied that the plaintiff was induced by such representations to buy any stock.

Upon the trial of the action it appeared that the defendants had general supervision of the manufacturing business of the corporation.

There was no evidence tending to show that their position in the corporation necersarily required them to have knowledge of the financial affairs of the corporation.

It also appeared, as testified to by the plaintiff’s father, that the plaintiff and defendants were related, and that they knew that the father of the plaintiff was desirous of procuring a situation for his son, the plaintiff; and they wrote to him in respect thereto. He came down to New York and saw the defendant, Ebenezer Spooner, at the factory of the corporation, and certain conversation was had in which the defendant stated that he had thought it over, and he thought perhaps they might make a place for the. plaintiff in that business. He said, however, he thought that plaintiff should buy $5,000 of the stock of the corporation at par and go to work and learn the business. The plaintiff’s father further testified that he said he wanted to know if it was all right and if it was going to pay himself and his boy; to which Spooner replied that he wanted he should understand it was a good business, well established, and kept two or three hundred employes working all the year, and its cash sales were from $500 to $700 a • day ; that it was a good business and paid; that it was a life business for his son and a start such as very few young men could get an offer of; that they really needed a little more money and if they had $5,000 he thought they could make more than they were then making. He claimed that they were making a very big thing and certainly paying ten per cent, and with this additional capital he thought it would pay more.

It is to be observed that the corporation had been at this time in existence but a short period.

Upon cross-examination he varied his testimony somewhat; The witness said that Spooner did not state how much profit they were then actually making, but that the boy would get ten percent for his money invested if he put it in there, and he thought if they added that $5,000 capital to the business they might make twenty per cent He further testified that he did not think they did say that it paid ten per cent, but that it was making that and could make more as soon as they could get more money, and he (witness) supposed that the profits up to that time were ten per cent; that they lid not tell him they had declared dividends on any stock at that- time and he did not ask.

He looked around the factory, and saw that they had a great deal of business and a large number of employes.

The plaintiff’s father returned home the next day and talked the matter over with his son, and a short time thereafter came down again, and saw both of the defendants, when the representations were repeated substantially to the same effect.' In a day or two the plaintiff’s father returned home, and after reporting his conversations with the defendants to his son, and talking the matter over, they concluded the offer was a good one, and the father gave the son the money with which to buy the necessary stock. The plaintiff came to Hew York, went directly to the factory of the company, paid his money to the treasurer of the company, received his certificate of stock, and entered into the employment of the company, where he remained some three and one-half years, with the exception of the time when he was at home ill. Soon after entering into the employment of the company he was made one of its directors, and attended its meetings; and it was only after he had left his position in the employment of the company that this action was commenced.

Evidence was offered on the part of the plaintiff tending to show that the company did not do a paying business, .and was not making ten per cent, as it was claimed was represented to plaintiff’s father, and by the father to the son.

Upon the termination of the plaintiff’s case a. motion to dismiss was made upon various grounds, among which were that there was no evidence that the defendants knew these statements, or any statements made by them, to be false, and that there was no evidence that these statements, or any of them, were made with intent to deceive, or did deceive the plaintiff; or that the plaintiff relied upon these statements.

Other points were raised, which it is not necessary to consider here. The motion was denied, and an exception taken, and the defendants introduced evidence upon their behalf tending to contradict the evidence on behalf of the plaintiff that these representations were made, and that any statements which the defendants made to the plaintiff’s father in regard to the condition of the company were known to the defendants to be false, or made with intent to deceive.

Upon the termination of the defendants’ case', the motion to dismiss was repeated. It was denied and an exception taken. The case was submitted to the jury, who found a verdict in favor ■of the plaintiff, and from the judgment thereupon entered and from the order denying a motion for a new trial this appeal is taken.

. It is claimed upon the part of the defendant that because the plaintiff nowhere testified that he relied solely upon these statements testified to by his father, the jury could not find a verdict in his favor.

We do not understand this position to be well taken. If from the nature of the transaction, the relation of the parties and the circumstances surrounding the transaction, it may fairly be presumed that the plaintiff relied upon the representations in entering into the transaction, and that they were the inducing cause, the mere fact that he has or has not sworn to the conclusion that .he relied upon the representations is of little moment In fact it is only of recent years that such questions were permitted.

But there is a more serious question, arising from the claim that there is no evidence before the court that the defendants knew the statements, or of them, made to be false.

In the case of Morris v. Talcott, 96 N. Y., 100, the court laid down this rule in respect to the nature of the proof of scienter in cases of the description of the one at bar. They say: “ The fraud charged against the defendant herein is of the nature of a crime, and cannot be presumed, but must be established by evidence. Henry v. Henry, 8 Barb., 592; Ward v. Center, 3 Johns., 281; Jackson v. King, 4 Cow., 207. While it is true that it may be proved by circumstantial evidence and the inferences legitimately deducible therefrom, yet the defendant is entitled in a judicial consideration of the proofs to the application of the rule that the presumptions of the law are in favor of the innocence of the person accused. A party, therefore, relying upon the establishment of a cause of action, or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish the probability of guilt in order to maintain his claim. When the evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent.”

Applying this principle to the case at bar there is no evidence which shows that the defendants necessarily knew the financial condition of this corporation or that they intended to convey to the plaintiff’s father the impression that they did. There is no evidence that they had anything to do with the financial affairs of the corporation, but rather that they had the superintendence of the manufacturing part of its business. And it further appears that the representations which they made to the plaintiff’s father must necessarily have been matters of opinion, because they were representations of what the business of the corporation would amount to and hence necessarily dependent upon future contingencies. If from the situation of these defendants the necessary inference could be drawn that they did know in regard to the financial affairs of the corporation, then, perhaps, a different rule might apply; but it appears that the whole of these representations were based upon their knowledge of the manufacturing department of this corporation, and there is no pretense that they knew, or represented that they knew, of its financial condition so that they could be said to have intended to convey the impression that they knew of their own knowledge whereof they spake. In cases of this description fraud must be established by evidence necessarily leading to that conclusion.

If an inference consistent with innocence may be deduced from the proofs such inference must be drawn as matter of law, and a jury cannot be permitted to speculate upon the question as-to whether fraud did or did not exist In the language of Morris v. Talcoit, the plaintiff must show affirmatively facts and circum-stances necessarily tending to establish the probability of guilt in order to maintain his action.

We think that the evidence in the case at bar fails to come up to this standard; and there is no evidence, even if the defendants made the representations to the full extent claimed by the plaintiff, upon which question there is grave doubt, that the defendants knew or had reason to believe them to be false.

, There is another question in regard to the variance between the pleadings and the proof; the complaint alleging that the stock was bought from the defendants, whereas the evidence seems to show that it was bought from the corporation.

While upon this appeal such a variance may be of no particular moment in view of the conclusion arrived at on the other points of the case, yet still it is a matter which may" need some consideration before a re-trial of this case is had.

Upon the whole case we are of opinion that there was no evidence which justified the jury in finding that the defendants made these representations knowing them to be false, and the judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the to abide the event

Daniels and O’Brien, J.J., concur.


text:
    Frederick B. Gurney, App’lt, v. The Grand Trunk R. Co. Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Carriers—Not liable for goods of others in passengers baggage.
    If goods, belonging to another person, be placed in the trunk of a passenger on a railroad, although such company accepts the trunk for transportation as baggage in the usual manner, if its servants or agents have no notice of the presence of such merchandise, no liability will arise on the part of the carrier to the owner of the merchandise in case of its loss or destruction.
    Appeal from interlocutory judgment sustaining a demurrer to ' the complaint

      B. B. Foster, for app’lt; G. F. Brownell, for resp’t.
   Van Brunt, P. J.

The complaint alleges that the defendant is a foreign corporation and a carrier of passengers and their baggage for hire between the places in the complaint mentioned, and that in April, 1889, the defendant received into a train of passengers to be carried from Suspension Bridge to Detroit for hire, one Launcelot S. Gurney, with his baggage, to wit: a trunk, in which, besides his wearing apparel, were contained samples of cutlery, the property of the plaintiff, to be used and exhibited by Launcelot S. Gurney in soliciting from purchasers orders for merchandise to be filled by plaintiff, said samples being of a certain value; and that by the negligence and improper conduct of the servants of the defendant unskillf ully and carelessly managing said train, the cars and the engine by which the same were propelled, and particularly by running said cars and engine at an immoderate and unsafe speed upon a descending grade round an abrupt curve on said railroad, caused certain cars and said engine to be thrown from the track and fire to be communicated with certain other cars at or near a point known as Hamilton Junction, by reason whereof the train and its contents were destroyed and the plaintiff damaged, etc.

To this complaint the defendant demurred upon the grounds, first, that the court had no jurisdiction of the person of the defendant; second, that the court had no jurisdiction of the subject of the action, and, third, that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon the last ground stated, and from the judgment thereupon entered this appeal is taken.

The question presented is whether a common carrier can be held liable for the loss of merchandise carried in the trunk of one of its passengers of the presence of which there is no claim that either it or any of its servants had knowledge. We think there can be but one answer to this proposition ; and that it is the one given by the learned judge who decided the demurrer in the court below.

The counsel for the appellant seeks to support a recovery upon the ground that although the defendant may not be liable upon its contract as carrier, and therefore not an insurer, yet it is' liable as bailee where the property has been lost through its negligence.

In the American & English Encyclopaedia of Law, vol. 2, p. 772, the principles governing this relation are very aptly set forth. It is said : “ The application of that law” (that is, the law of bail-

ments), “to the facts of cases involving carriers without hire is all that need be attempted. Its cardinal principles are thus tersely stated. When the bailment is for the sole benefit of the bailor the law requires only slight diligence on the part of the bailee and he is consequently responsible for nothing less than gross neglect When the bailment is for the sole benefit of the bailee, an extraordinary degree of care is demanded and the bailee is therefore responsible for slight neglect When the bailment is reciprocally beneficial to both parties, as in the case of carriage of goods for hire, such care is exacted of the bailee as every prudent man commonly takes of his own goods; or in other words, the law requires ordinary diligence upon the part of the bailee and makes him responsible for ordinary neglect The well known and most important difference between carriers without hire and common carriers is found in the measure of liability they respectively assume in their undertaking to carry and deliver. The former is determined by the degree of negligence of which he is guilty, while the latter is an insurer.”

It will thus be seen that if the defendant had knowingly attempted to carry these goods, it would have been simply a bailee performing an act for the sole benefit of the bailor and would only be liable for gross neglect. This is the rule laid down in the case of Stimson v. Conn. River R. Co.« 98 Mass., 83, and the same rule is. recognized in Ailing v. Boston & Albany R. Co., 126 Mass., 121, and again reiterated in Blurnanile v. Fitchburg Railroad Co., 127 Mass., 322. And although the question was not up for determination in that case, the same rule is also recognized in Sloman v. Gt. IF. R. Co., 67 N. Y., 208, where a recovery is allowed expressly upon the ground that the railroad company had notice that the trunks contained other than personal baggage, and received compensation for their transportation. This rule applies, therefore, only to those cases where the transportation company has notice that it is being made a bailee and has accepted that position.

Under these circumstances, as already stated, the transportation company, under the rules of law applicable, is liable for gross neglect, and nothing less will suffice to make it liable.

Mow, what is gross neglect ? As contradistinguished from ordinary neglect, gross neglect means acts equivalent to wilful acts upon the part of the bailee by which the property is lost Where he wilfully refuses to take any precaution for the purpose of saving or cai’ing for the property, the bailee is guilty of gross neglect. It is not where he simply fails to use the ordinary care which a prudent person would exercise under the circumstances.

But in the case at bar there is not the slightest evidence that the defendant knew that it was transporting any property of the plaintiff. There is not the slightest evidence that it ever accepted any obligation in reference to any property belonging to the plaintiff. But, without its knowledge, the plaintiff’s property is thrown into its possession without it having seen it or known of its existence, and, when lost, is called upon to pay for it

There is no case that we have been able to find that in the slightest degree countenances a recovery on such a state of facts.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.


author: O’Brien, J.

text:
    The People ex rel. Thomas F. Cock et al., App’lts, v. Charles E. Fleming, Charles Sohroeder and William S. Watson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Religious corporations—Election.
    Where the full number of trustees of a religious corporation is voted for at anfannual election, those declared elected become the successors of the old board, and there is no such “omission or neglect to choose any of the trustees ” as will authorize the old board to hold over, although a'majority of the new board may be afterwards ousted or removed.
    ■ 2. Same—Effect of judgment of ouster.
    The effect of such judgment of ouster is merely to create vacancies within the meaning of Laws 1813, chap. 60, § 1, providing for an election to fill vacancies.
    Appeal from a judgment entered upon verdict directed in favor of defendants, and from an order denying a motion for a new trial.

      Wager Swayne, for app’lts; William H. Hamilton, for resp’ts.
   O’Brien, J.

This is an action in the nature of a quo warranto and was brought by the attorney -general in the name of the People on the relation of plaintiffs to oust the defendant Fleming from the office of warden of the Church of St. Stephen and the defendants Schroeder and Watson from the offices of vestrymen of said church.

The record presents the following undisputed facts:

The rector, church wardens and vestrymen of the Protestant Episcopal church of- St. Stephen is a religious corporation, organized under the laws of 1813, chapter 60, § 1. The number of wardens is fixed by its certificate of incorporation and its by-laws at two, and the number of its vestrymen at eight, and these ten persons with the rector form the vestry of said corporation.

The defendants claim title to their office by virtue of an election held on April 7, 1890. On such date the stated annual election of the corporation was held and the defendants with seven other persons were declared elected to the offices of wardens and vestrymen. On the 10th day of April, 1890, an action in the nature of a quo warranto was brought in the court of common pleas against the seven persons, who with the defendants had been so declared elected, and in that action judgment was rendered ousting the said seven persons from office. These defendants were not parties to that action, but thereafter this action was brought for the purpose stated.

The plaintiffs admit that at the stated annual election, held on April 7, 1890, the defendants received a certificate of their election, but contend that they have never become the legal officers of the corporation or entitled to act as such because of an omission or neglect at said election to elect one other warden and six other vestrymen; that by such omission or neglect the church wardens and vestrymen in office at the time of such omission held over and are to be deemed the legal officers of such church and continue to hold their offices until others are chosen in their stead. This contention is based upon the Laws of 1813, chap. 60, § 1, "which provides “that church wardens and vestrymen to be chosen at any of the said elections shall hold their offices until the expiration of the year for which they shall be chosen and until others be chosen in their stead,” and Laws of 1844, chap. 158, § 3, which provides: “Whenever there shall have been any omission or neglect of any church, congregation or religious society, at their stated annual meeting, to choose any of the trustees, church wardens, vestrymen or other officers, such church, congregation or religious society shall not be deemed or taken to have been dissolved, but the trustees, church wardens, vestrymen or other officers in office at the time of such omission shall be deemed and taken to be the legal officers of such church, congregation or society and shall continue to hold their offices until others be chosen in their stead.”

It having been adjudged that seven of the persons declared elected on the 7th day of April, 1890, were not -legally elected, the elaim is that the former wardens and vestrymen hold over by force of these statutes.

It is conceded that the defendants here were legally chosen at the election of 1890, but it is asserted that they were not elected in the stead of the ten persons formerly in office so as to terminate the rights of the former incumbents “to hold their office until others be chosen in their stead,” under the provisions of the acts cited.

At the outset a serious question is presented as to the right of the relators to question the title of the respondents. They participated without objection in the election of 1890. They were candidates at such election and voted thereat They actively participated with the rector in rejecting nine votes that were offered against them and for their competitors, four of whom were subsequently declared to have been elected. With knowledge of the facts the relators accepted the certificates of their election, accepted the offices under such certificates, went into possession and until ousted by the judgment of a court of competent jurisdiction assumed to discharge all of their duties and functions.

In the suit brought against them they persisted in claiming title under this very election and still persist by an appeal taken from the judgment of ouster.

Upon a state of facts in many respects similar to those now presented, the Maryland court of appeals in the case of Handy v. Hopkins, 59 Maryland, 157, held that the appellants who had claimed title under the election held in 1881, which was declared null and void, were not in a position thereafter to assert that they claimed title by virtue of a hold over.

This case is instructive not only upon this question, but as bearing upon the effect of the judgment of the court of common pleas in ousting the seven officers of St. Stephen’s who were elected together with the defendants at the election in 1890. It is an argument in favor of respondents’ position that the effect of selecting officers at an election subsequently declared to be null and void and who were thereby removed created “ vacancies ” in such offices.

In the course of the opinion we find this language: “ The election of 1881 was not in effect null and void until declared so by the judgment of a competent tribunal. It was in all respects good and valid until declared otherwise ; and the appellants were fully authorized to act in the discharge of the duties of their offices, and all their official acts are as valid as if the election had been declared in all respects legal.

“ They had not only the color of a due election but they had all the forms necessary to invest them with full authority of the offices, and these they accepted and complied with as an intention to hold under the last election and none other. But from the moment that the election was declared null and void, the power and authority with which they were invested by virtue of that election ceased and the offices then became vacant.”

We shall assume however, without deciding the question, that the appellants are not estopped from denying the title of the respondents ; and will therefore pass to a consideration of the real question in the case, as to whether or not successors to the relators and the other members of the old board were elected the 7th day of April, 1890. It is conceded that the full board of officers required to be elected were voted for on the 7th day of April, 1890; that they were declared elected by the proper officers; that they all accepted and went into office under that election; that certificates of their election were made out and entered in a book of the minutes of the vestry, and that they continued to occupy the offices from April 7th until June 21,1890. ¡Notwithstanding these facts the claim is advanced that the effect of the judgment of ouster of the seven other officers destroyed the title to the offices held by the three defendants here, who were legally elected and whose status is in no other way questioned. In other words, it is insisted that the removal of the seven constitutes an “omission or neglect ” of the church to choose its officers, and therefore ■ . under the Laws of 1844, above quoted, the former incumbents held over to the exclusion of the defendants. This contention is sought to be strengthened by the argument that if the three defendants were elected in the stead of the former vestry, they are not competent to transact. the business of the corporation for the reason that they are not numerically sufficient to constitute a board for the transaction of business, nor are they, for the same reason, in a position, if the judgment of ouster of the seven others be construed as creating vacancies in these offices, competent or empowered to fill the same. Laws of 1813, chap. 60, § 1. The Laws of 1844 employ the language that “ whenever there shall have been any omission or neglect * * * to choose any of the trustees * * * the trustees, etc., * * * shall continue to hold their offices until others be chosen in their stead.”

In People v. Van Horne, 18 Wend., 515, in construing a similar statute, the court defines the term “neglect,” as used by the legislature as synonomous with omit,” or to leave an act undone. Here there was no omission or neglect to hold an election or choose officers. The stated usual election was held, a full board was declared elected, and this board continued in office for two months and a half, when seven of its members were ousted or removed, leaving the defendants in office.

In our view the Law of 1844, chap. 158, can have no application to a state of facts such as here presented. It provides for a case where there is an omission or neglect to hold an election or choose officers, and cannot be construed as meaning that upon a vacancy being created or the title being destroyed of any offices by judgment or otherwise, that then the titles of all the others to their respective offices shall ipso facto also be destroyed.

This view is supported by the provisions of the law of 1813, which prescribes that “whenever any vacancies shall happen * * * ” by death or otherwise, the said trustees shall appoint a time for holding an election to supply such vacancy. It is further strengthened by recalling what the statute was intended to prevent, viz.: the dissolution of the corporation by an omission to i elect officers. ¡No dissolution would result by an omission to elect ■ all as distinguished from some of the officers.

It may be true, as claimed, that by the subsequent provision of the section just quoted the remaining officers or trustees, not being sufficient in number to constitute a quorum, cannot fill the vacancies thus created.

In our judgment, however, a distinction exists between the right of persons to hold office and their power to do certain acts which by statute or the by-laws of a corporation can only be done by a board ór a quorum thereof. The courts have in several instances set aside the election of a majority of directors and trustees of •corporations, leaving only a minority m office, and directed the vacancies to be filled by an election.

In Ex parte Desdoity, 1 Wend., 98, the election of thirteen trustees was set aside, and that of the remaining four declared valid. In Vandenburgh v. The Broadway R. R. Co., 29 Hun, 348, it was held that any number of persons who might receive a majority of the lawful votes were elected, although, there was a failure to elect the full number required by law.

In the Matter of the Union Ins. Co., 22 Wend., 591, twenty-two instead of twenty-three directors were elected. The old board thought the election for that reason had wholly failed, and claimed the right to hold over, and order a new election. This election was held, and twenty-three were chosen. On motion the election of the twenty-three was set aside, and the election of the twenty-two declared valid, and an election for one to fill the vacancy was ordered. In this latter case it is true, which gives some strength to the appellants’ argument, is a dictum to the effect: “ That if less than twelve, the majority number of twenty-three, had received a plurality of votes, it may be that the whole election would have been void.”

It will be noticed that this dictum does not go to the extent of saying that the election would have been void, and yet this is the only authority referred to in which any such intimation is given. On the other hand, in addition to the authorities cited, we find in The Matter of L. I. R. R. Co., 19 Wend., 37, a dictum directly •contrary. But it is unnecessary to examine all the arguments advanced to support appellants’ contention, for after all the question is reduced to a narrow compass, and relates entirely to the construction to be given to the words “ neglect ” and “ omission,” as used in the Laws of 1844.

In our judgment successors to the relators and the other members of the old board were selected in April, 1890, and no omission or neglect to choose officers occurred, such as would entitle the old officers to “ hold over.” The new officers were fully authorized to act and discharge their duties as they did for a period of two months or more. The result of the judgment of ouster of the seven others elected with them was to create vacancies and cannot be held to have destroyed the title to the offices to which the respondents were duly elected. This conclusion consonant with law seems to us to be founded upon reason and justice. To uphold the relators’ position would be in effect to determine that these defendants, who were regularly chosen at an election held at a time and place fixed by the statute, articles of incorporation, by-laws and invariable usage of the church, the notice for which was given under the direction of the court, and at which election all the votes cast including the relators’ were for the defendants, and whose title to office was thereafter recognized, should be ousted and excluded from office because a judgment subsequently rendered removed the. relators themselves.

In our opinion the disposition made of this case by the trial court was proper and the judgment and order should be affirmed,, with costs and disbursements.

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


author: O’Brien, J. Van Brunt, P. J.

text:
    Edmund H. Sentenne, Resp’t, v. Horace R. Kelly, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Contract—Performance—“As soon as possible."
    A requirement in a contract of performance “ as soon as possible,” means with greater celerity than within a reasonable time.
    3. Trial—Evidence.
    The exclusion of evidence offered by one party of the same character and on the same point as that admitted on the offer of the other, is reversible error.
    Appeal by defendant from a judgment on the verdict of a j'ury and from an order denying motion for a new trial, and also from a second order denying second motion for a new trial on affidavits.

      Wm. Geo. Oppenheim, for app’lt; Henry B. B. Stapler, for resp’t.
   O’Brien, J.

This action was brought to recover $1,431.90 for breach of the following contract:

“New York, April 27th, 1887.
New York Sand Blast Works:
“You are hereby authorized to manufacture for us fifteen hundred (1500) embossed, glass signs, size seven by nine, framed in like sample and worded as follows, to wit:
“ Like sample. Eight hundred to be delivered us soon as possible, balance within eighteen months, for which we agree to pay two thousand dollars ($2,000) for 1500 signs. * * *
“(Signed) Horace E. Kelly & Go.”

The defenses interposed were that the signs delivered were not like sample and were not delivered within the time as called for by the contract.

"As to the first defense there was conflicting evidence as to whether or not the signs delivered were like the sample, and while some fault might be found to the admission of evidence under objection of one of plaintiff’s witnesses as to the difficulty in obtaining in the market the leather back similar to the sample, the injury thereby done would not be sufficient to call for the reversal of the judgment based upon a verdict which, upon all the facts relating to this issue, the jury found adverse to defendant.

To entitle plaintiff to recover it was incumbent to show that the goods were delivered “ as soon as possible,” so as to be within the terms of the contract. As the exceptions taken to the judge’s charge and to the exclusion and admission of testimony are to be determined by the consideration of what was meant by this expression “ as soon as possible,” it is necessary at the outset to have this phrase defined.

In Attwood v. Emery, 1 C. B. R. (N. S.), 114, it was said: “ The expression is one that is susceptible of several different significations.”

In that case Creswell, J., says: “ The case has been argued upon the assumption that the plaintiff’s engagement was to execute the work with more speed than would have been required had the words been‘within a reasonable time.’ * * If defendant had intended to have the hoops within the limit he should have taken care to express himself accordingly. I think this contract means no more than a reasonable time, regard being had to the plaintiff’s facilities and extent of business and the contracts he already had on hand.”

In that same case Crowder, J., says : “The words ‘as soon as possible ’ clearly meant as soon as you possibly can. Nor can I understand how it can reasonably be suggested that either party contemplated that the plaintiffs were to put aside any other engagements • in order that this particular . one should be performed. If the defendant had desired to have the goods by a limited time he should have taken care to have given a more limited order.

In the Hydraulic Engineering Co. v. McHaffie et al., 29 English Rep. (Moaks Notes, p. 102) the case of Attwood v. Emery, supra, was examined and criticized. Bramwell, L. J., says: "To do a thing as soon as possible means to do it within reasonable time. In Attwood v. Emery the expressions of eminent judges seem to favor a different view as to the construction of the words ‘ as soon as possible.’ I quite agree that a manufacturer or tradesman is not bound to discard all other work for the occasion, in order to take in hand a thing which he promises to do ‘ as soon as possible ’; for instance, a tailor, who accepts an order to make a coat ‘ as soon as possible ’ need not put down a half made vest, in order to begin the coat; every customer knows at the time of giving the order that the manufacturer or tradesman may have other orders on hand; and I do not think that Attwood v. Emery goes further than this. * * *

“If, however, it is an authority in favor of the defendants 1 cannot agree with it. In construing the contract in the present case I think it would be utterly unreasonable to hold that the defend ■ ants were not bound to deliver the gun until the state of affairs in their workshop should allow them to do so; the defendants ought not to have undertaken to make it unless they were certain that they could carry out their contract.”

In the same case Cotton, L. J., says: “ By the words‘as soon as possible,' the defendants must be taken to have meant that they would make the ‘ gun' as quickly as it could be made in the largest establishment with the best appliances. I do not think that these words can be taken to mean that the defendants merely promised to make the ‘ gun ; as quickly as the means at their disposal might allow.”

In Duncan v. Topham, 8 C B. R, 225, cited in the 105 N. Y., 412 ; 8 N. Y. State Rep., 43, where the contract was to send five tons of oil cake to be delivered directly, a verdict in favor of the plaintiff was reversed because the judge charged that the meaning of the contract was that the goods should be sent as soon as prac^ ticable, and if on the evidence there had been a delivery or offer to deliver within a reasonable time, they should find for the plaintiff. It was therein held that “ a reasonable time ” means somewhat more protracted time than directly.

There is of course a distinction between “ directly " and “ as-soon as possible,” and the only purpose of referring to that case is to show that expressions such as “ directly ” or " as soon as possible '' are not synonymous with nor do they mean the same thing as “a reasonable time/'

In Parsons on Contracts, vol. 2, 7th ed., p. 661, foot paging-794, it is said “If the contract specifies no time the law implies that it shall be performed within a reasonable time and will hot permit this implication to be rebutted by extrinsic testimony-going to fix a definite time, because this varies the contract. What is a reasonable time is a question of law.”

In Addison on Contracts, vol. 2, p. 1188, where a number of authorities are cited, the rule is thus stated: “A contract to-do a particular thing directly or as soon as possible or forthwith does not mean that it is to be done instantly, but there must be no delay in performance, and such a contract requires a much more speedy fulfillment than a contract to do a thing within a. reasonable time,” These authorities are sufficient for the statement that unless the expression “as soon as possible" meant a greater celerity than a “reasonable time'’ then they were utterly superfluous in the contract. For, as we have seen, if no time is-specified the law implies that it is to be performed within a reasonable time. Applying the law as thus settled by text writers and in cases to the questions presented by the exceptions, it remains to determine whether any error was committed sufficient to justify a reversal.

Taking the judge’s charge as a whole I do not think any fault can be found therewith; for though he defines the words, “ as soon as possible ” as synonymous with “a reasonable time,” he qualifies the latter expression in such a way as to bring it within the rule, so that the jury were correctly instructed with regard to plaintiff’s duty in reference to delivering the signs with all possible expedition. In other parts of the case however we do not-find the same care observed, and notwithstanding the objection made by the defendant, the court and the plaintiff treated the expression “as soon as possible” as synonymous with “a reasonable time.” Thus in folio 96 the plaintiff asked the witness, “ what in your opinion would be a reasonable time for the making and delivery and framing of 800 embossed signs such as I show you?” This question is faulty in two respects; first, as calling for an opinion upon a question which the court has ruled was a question of law, and secondly, as assuming that “ a reasonable time " and “ as soon as possible ” were one and the same expression. The same fault is to be found with the questions asked by plaintiff as they_ appear upon page 34 of the printed record. These questions directly pointed to one of. the main issues about which the parties were contending, and while it would have been proper to have allowed witnesses who were competent by reason of their experience to state how long it would nave taken to manufacture the signs, this would not, as the question asked and answered did, intrench upon the province of the jury. Gutwillig v. Zuberbier, 41 Hun, 365; 2 N. Y. State Rep., 605. The latter, under the instructions of the ¡court as to the construction to be given to the contract, were' to determine what these witnesses were allowed to conclude, viz., whether the delivery was made in time.

The defendant’s grievance in respect to this testimony is accentuated when we refer to a similar question asked by the defendant which, in all respects, was like those admitted on plaintiff’s behalf, except that instead of using the phrase “ a reasonable time,” the one used was that of the contract, namely, “ as soon as possible.” This question, to be found at folio 59, was ás follows: “ Your contract is 800 signs to be delivered as soon as possible, the date is April 27th. State what you consider 1 as soon as possible ? ’ ”

This question was objected to as being a question of law, and the objection was sustained and defendant, excepted. It will thus be seen that while we agree with the excluding of the last question, it seems but proper that where the same questions were asked and answered in favor of the plaintiff that a similar rule at least should have been applied in favor of the defendant and the testimony so objected to should have been excluded.

These errors cannot be regarded as immaterial, because they went to the whole gist of the action. And upon a reading of the whole case it is evident that the confusion introduced relative to plaintiff’s duty in respect to time of delivery must necessarily have prejudiced the defendant.

In Brady et al. v. Cassidy, 104 N. Y., 148; 5 N. Y. State Rep., 569, it was held that “ when the terms and language of a contract are ascertained, in the absence of technical phrases or of terms the meaning of which is obscure or of latent ambiguities, rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court.” See, also, Dwight v. Germania Life Ins. Co., 103 N. Y., 353 ; 3 N. Y. State Rep., 115.

The language used in this contract was neither ambiguous nor technical, and the construction thereof was for the court and not for the witnesses. We are unable to reconcile the rulings made for and against the plaintiff. “ An unequal application of the rules of evidence offered by one party and excluding evidence of the same character on the same point offered by the other, is good ground of reversal.” Holten v. Holten, 5 W. Dig., 14. It is unnecessary, therefore, to consider the other questions raised upon this appeal, as the judgment must, for the reasons stated, be reversed and a new trial had, with costs to defendant to abide the event.

Van Brunt, P. J.

I concur in the result. It does not appear that- adjudications can alter the import of plain words in a contract, It seems to me that the fact that as, without any words of expedition in the contract, the plaintiffs would have been bound to furnish the goods within a reasonable time, the addition of such words show conclusively that the parties had in mind some thing in addition to what the law implied.

“ Within a reasonable time seems to mean within such time as can be done, following the ordinary course of business “ as soon as possible ” seems to mean as soon as can be done, using the greatest diligence.

Daniels, J., concurs in result.