author: Per Curiam :

text:
    In the Matter of the Petition of the NEW YORK ELEVATED RAILROAD COMPANY, Relative to Acquiring Title to Certain Property in the City of New York. In re STORY.

      Second appraisal of damages sustained because of the talcing of land for railroad purposes — no appeal can be talcen therefrom — when it can be set aside on motion — what must be shown to authorize this to be done.

    Although, an appeal from a second appraisal; made by commissioners appointed to appraise the damages to be awarded for the taking of lands for the purposes of a railroad, is expressly prohibited by the statute, the petitioner is not wholly remediless, as his right to make a motion to set aside the report is distinctly recognized and announced in several cases.
    To authorize a court to review, on motion, a second report, something more must bo apparent than such errors of law or fact as are reviewable on appeal, and which would, if established, require a reversal and a new hearing. There must be such an irregularity, fraud or mistake in the proceedings of the commissioners as would authorize the court, under its established practice, to set aside a judgment or verdict in an action on a motion.
    The report cannot be set aside on a motion because of an error committed by the commissioners in excluding or admitting testimony to which one of the parties objected, nor because of any ordinary ruling in the progress of a trial to which an objecting party must reserve his right of review by an exception.
    Upon the second hearing of this proceeding, instituted to determine the damages sustained by the owners of certain premises in the city of New York by the construction of an elevated railroad through and over the street upon which they abutted, a witness called by the owner was asked: “In your opinion does the structure of the railroad and the passing of the trains upon it, as it is constructed and operated, diminish the value of .the property, limiting your consideration to the effect, if any, produced upon light, air and access, and excluding from your consideration the effect, if any, produced by noise, the vibration of the building, annoyance by smoke, ashes, dust, steam or cinders, and by the unsightly appearance of the structure itself?” The objection of the petitioner “to so much of the question as asks as to the effect of. the passing train upon the light in Mr. Story’s premises ” having been overruled the witness was allowed to answer the question.

      Held, that even if it were assumed that the ruling was erroneous (which the court did not decide), and that the error was one which would on an appeal be a fatal one, yet as the fact, that the commissioners had allowed any damages whatever for the effect of the passing train upon the light was not clearly and affirmatively made to appear, the mere possibility that they might have done so would not justify the reversal of the appraisal upon this motion.
    Inferences, probabilities and possibilities are not a sufficient basis for this mode of proceeding.

      Motion to set aside tbe report of commissioners appointed to assess and appraise the compensation to be made to Rufus Story as the owner of so much of the privilege, easements or other interest in Front street belonging to the said Story, as appurtenant to certain lots owned by him, as is or has been taken by the petitioner for its use as an elevated railway.

      Wm. B. Hornblower, for the petitioners.

      John E. Parsons, for Mr. Story.
   Per Curiam :

The report now sought to be set aside is one made by new commissioners on a second hearing and appraisal after the reversal on appeal of the first. An appeal from such second appraisal is expressly prohibited bjr statute, but it does not follow that the petitioner is wholly remediless because the right of appeal is taken away. The right to make a motion to set aside the report is distinctly recognized and announced in several cases cited by the learned counsel for the petitioner. (Matter of N. Y. C. and H. R. R. R. Co., 64 N. Y., 60; Matter of Prospect Park and C. I. R. R. Co., 24 Hun, 199; affirmed, 85 N. Y., 489.) The same practice exists in analogous assessments, notwithstanding a statute may declare them final and conclusive. (Matter of Application of Mayor of N. Y., 49 N. Y., 150; Baldwin v. Calkins, 10 Wend., 167.)

But we think that to authorize a court to review on motion a second report, from which the statute has expressly inhibited an appeal, something' more must be' apparent than such errors of law or fact as are reviewable on appeal and sufficient, -where an appeal is allowable,- to result in a reversal-and new hearing. If this be not so the denial by statute of the right to appeal is a simple bruixom fulmén, and of no practical value to any one, for the remedy by motion could in that case be invoked for every erroneous ruling or finding in the progress of the hearing and determination from which substantial prejudice to the moving party might be inferred. There must be such an irregularity, fraud or mistake in the proceedings of the commissioners to warrant a proceeding by motion as would authorize the co'urt, under its established practice, to set aside a judgment or verdict in an action on motion. But there is no practice which authorizes the setting aside of a judgment on motion because the court on the trial committed an error in excluding or admitting testimony to which one of the parties objected, nor for any ordinary ruling in the progress of a trial to which an objecting party must reserve his right of review by an exception. It must appear, on the contrary, that some of the material proceedings of the court or referee or jury were fraudulent, illegal or irregular, in contradistinction to those possible or probable errors which are made in the progress of a trial by the decisions of a court acting in entire good faith, but under mistaken views of law or fact, and which are correctable by the ordinary process of appeal. In this case we fail to see any such fraud, irregularity, illegality or mistake as would justify us had they occurred in the course of a trial of an action in court, in setting aside a verdict on motion; though it is quite possible if an appeal would lie we might feel bound to set aside the report because of a mistaken ruling as to admissibility of evidence or the propriety of the form of a question relating to damages allowed to be put by the commissioners against the objection of the petitioner. The question objected to was: Q. In your opinion does the structure of the railroad and the passing of the trains upon it, as it is constructed and operated, diminish the value of the property limiting your consideration to the effect, if any, produced upon light, air and access and excluding from your consideration the effect, if any, produced by noise, the vibration of the building, annoyances by smoke, ashes, dust, steam or cinders, and by the unsightly appearance of the structure itself ? ”

The counsel of the petitioner objected “to so much of the question as asks as to the effect of the passing trains upon the light in Mr. Story’s premises.” The commissioners overruled the objection and the counsel excepted. It is obvious that the counsel for Story had carefully sifted the elements of this question out of the disjecta memhra of the various opinions heretofore enunciated by the courts in the several phases which Mr. Story’s case has assumed.

It is not necessary to say what our opinion might be if we were called upon to review the correctness of the ruling admitting this question upon a bill of exceptions or case on' appeal from a trial at circuit, for it does not follow that if that ruling was erroneous it was such a mistake, fraud or irregularity as would require the court to set aside a judgment on motion founded upon affidavits. Such a practice in such a case we think would not be entertained. It is urged, by counsel for petitioner, that this ruling introduced an element of damage for the consideration of the commissioners not allowable under the authorities, and that, therefore, the commissioners may have, to some extent, allowed damages upon an erroneous principle. If this position is true, upon which, however, we do not intend to pass, the ruling would on appeal be a fatal one, because it would not appear but that the commissioners might have allowed some portion of the damages for the effect of passing trains upon the light. But in this case that possibility is not sufficient to justify setting aside the report. It is not manifest in the case that any such damages were in fact allowed. That they were is mere matter of inference from the allowance of the question and the answer. But the inference may be a wholly mistaken one. The witnesses who answered this question estimated the damages from $17,500 to $25,000 or more. The commissioners allowed damages to the amount of $7,000. Now, the inference is quite as strong that in getting at the sum of $7,000 they eliminated the injuries to light by the passing trains, as that they included them, and it cannot correctly be said that it appears beyond question that the objectionable damages were included. But upon such a motion as this that fact must clearly and affirmatively appear. Inferences, probabilities and possibilities are not a sufficient basis for this mode of proceeding.

The report of the commissioners states they did “ ascertain and appraise the compensation to be made by the petitioner herein to the said Rufus Story for so much of the said privilege, easements or other interest in Front street belonging to the said Rufus Story as is or has leen taken by the petitioner at the sum of seven thousand dollars.” This would seem to exclude the idea that anything except what is or has been taken by the petitioner ” was included in the $7,000 awarded; and although it is highly probable that the petitioner has been by the result made to pay something for the effect of the momentary “flashes of darkness ” which its passing trains cast into Mr. Story’s windows, yet that has not been made to appear in a form entitling the petitioner to relief by this motion.

The motion must be denied, with ten dollars costs and disbursements.

Present — Davis, P. J., Brady and Daniels, JJ.

Motion to set aside' report denied, with ten dollars costs and disbursements, and motion to confirm the report granted.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    JAMES STARK, Respondent, v. THE UNITED STATES NATIONAL BANK, Appellant.

      Liability of a bank receiving paper for collection — it cannot apply the proceeds to the payment of a general balance of account existing against the bank from, which the paper was received — right of the owner to repossess himself of the paper on the failure of the bank.

    Upon the trial of this action, it appeared that a note and draft were indorsed in blank by the owners, the Arm of Mohler & Sons, and delivered with letters of instruction to the State Bank of West Virginia for collection. By this bank they were sent to the defendant bank with a letter of advice and an indorsement, each to the effect that they were sent for collection. After they had been received by the defendant, and before either of them had been collected, the State Bank of West Virginia became insolvent and failed, and the Arm of Mohler & Sons assigned the note and draft and their right of action to the plaintiff, who, after a refusal of the defendant to comply with a demand for the note and draft made by him, brought this action for their conversion.

      Held, that as no draft or check was drawn upon the defendant by the Virginia bank, and no advance was ever made by the defendant based upon either the note or the draft, it had no legal right to hold the paper for its security on account of the general balance in its accounts against the Virginia bank.
    That it was legally bound, as the Virginia bank had failed and discontinued its business, to return the paper to its owners, and as it failed to do that when a proper demand for it was made, and afterwards proceeded and collected the note and the draft, it was chargeable With a conversion of those instruments.
    That the objection that the plaintiff, as the assignee of the owner of the paper, could not maintain the action was untenable. That when the Virginia bank became insolvent and incapable of discharging the duties of its agency, the owners of the paper were entitled to repossess themselves of it and proceed with its collection for themselves.

      Lindauer v. Fourth National Bank (55 Barb., 75) and Bod v. Same (59 id., 265) followed.

      Appeal from a judgment in favor of the plaintiff, entered on the report of. a referee.

      Charles B. Alexander, for the appellant.

      Andrew Shiland, Jr., for the respondent.
   Daniels, J.:

The complaint in this action set forth two grounds of action, the first for the recovery of a promissory note made by the firm of Allen & Lauce for the payment of $500 to the order of Mohler & Sons in sixty days after the 25th of April, 1884, the other was for the recovery of a draft, or bill of exchange, drawn by A. JB. Lewis on the firm of Dannatt & Pell, for the sum of $133.29, in sixty days after the 26th of April, 1884. This draft and note were alleged to have been received by the defendant and converted to its own use. And as that conversion was found to be proved by the evidence, and the amounts had in the meantime been collected, a judgment was directed in favor of the plaintiff for damages, amounting to the sums received upon the paper, with interest thereon.

’ The note and the draft were owned by the firm of Mohler & Sons, and they were indorsed in blank and delivered to the State Bank of West Virginia for collection. Accompanying them were letters of instructions to that effect, and this bank transmitted them to the defendant with an indorsement that they were sent for collection. After that, and before either demand was collected, the State Bank of West Virginia became insolvent and failed in its business, and Mohler & Sons, by an instrument in writing, assigned the note and draft and their right of action for damages to the plaintiff. After the failure of the State Bank of West Virginia, Mohler & Sons demanded the note and draft of the defendant, which refused to deliver them up, claiming to hold them on account of overdrafts previously made by the State Bank and paid by the defendant.

But it appeared by the evidence that no draft or check was drawn upon the defendant by the State Bank of West Virginia against either of these demands, nor was any advancement at any time made upon either the nóte or the draft by the defendant or the State Bank. What the defendant had done was to pay the drafts drawn upon it by the State Bank of West Virginia, having no reference whatever to either of these demands; and in paying the overdrafts the defendant did not do that under any special reliance placed upon this paper, but it was still insisted in its defense that it was entitled to the benefit of the paper against the owner for the general balance accruing in its favor on the account.

This point, however, is not sustained by the authorities in this State relating to this transaction. It is true that the State Bank might have negotiated the note and the draft to the defendant, on the faith of the general indorsement of the payees. And if that had been done, and the defendant had advanced its money upon the paper, it would have been entitled to hold it against the parties delivering it to the State Bank for collection. But that was not done, neither did the State Bank obtain any title to the paper, otherwise than in its agency for the collection, by the delivery of the draft and note to it. For that delivery was accompanied by written instructions, that it was made to enable the State Bank to forward and collect the paper. And accordingly, as between the State Bank and the indorsers, it had no title whatever to the paper, beyond the duty and obligation to collect it and return the proceeds to the parties from whom it had been received, or the plaintiff as their assignee.

In transmitting the paper to the defendant it was indorsed for collection, and the letters of instructions accompanying the note and draft further apprised the defendant of this fact. And from this information it was to be inferred by the defendant that the State Bank was acting in behalf of some other party in the collection of the paper for that party, and the defendant undertook the performance of the same duty with the knowledge of the existence of that fact. The paper was not credited in the defendant’s account with the State Bank, neither was the defendant asked to, nor did it deal with the paper in any other form or manner than that of a collection agent. And that was the extent of its relation to this paper when the State Bank failed and it was demanded by the parties who had delivered it to the State Bank to be collected. And in this state of the facts the defendant had no legal right to hold the paper for its security on account of the general balance of its accounts against the State Bank. (Scott v. Ocean Bank, 23 N. Y., 289; McBride v. Farmers' Bank. 26 id., 450; Dickerson v. Wason, 47 id., 439; Jessop v. Miller, 1 Keyes, 321.)

"What it was legally bound to do, as the State Bank had failed and discontinued its business, was to return the paper to its owners, and as it failed to do that when a proper demand for it was made, and afterwards proceeded and collected the note and the draft, it' was chargeable with a conversion of those instruments. (Spraights v. Hawley, 39 N. Y., 441; Bank of Rochester v. Jones, 4 Comst., 497; Cayuga County Bank v. Daniels, 47 N. Y., 631; Jessop v. Miller, 1 Keyes, 321.)

It has been objected that the plaintiff, as the assignee of the owners of the paper, cannot maintain this action. But when the State Bank became insolvent and incapable of performing the functions of its agency, the owners of the paper were entitled to interpose in their own behalf and for their own protection. They were not bound after that to permit the State Bank to proceed with the transaction any further than it had. It had become incapable of discharging the duties of its agency, and the owners of the paper were entitled to repossess themselves of it and proceed with its collection themselves. A point of this description was considered in Lindauer v. Fourth National Bank (55 Barb., 75) and Dod v. Same (59 id., 265), where it was held that the action by the owner of the paper might be maintained. The cases holding that the bank transmitting the paper can alone maintain an action against its agent are not in conflict with this proposition. For the plaintiff here, as well as the parties from whom he derived his title, proceeded in disaffirmance of the agency, because of the insolvency of the immediate agent and the refusal of the defendant to observe and fulfill the obligations of the agency which were to collect, preserve and remit the proceeds of the paper for the benefit of the parties for whom the collection should in fact be made.

It is not important to consider whether any of the objections taken to the admissibility of portions of the evidence were well founded or not, for the controlling facts of the case are free from all possible dispute, disclosing the legal condition of the rights and obligations of these parties. And that the witnesses were permitted to proceed farther than they should have gone in giving their evidence, in no manner changed the state or condition of these facts. The judgment which has been recovered was well sustained by the proof, and it should be affirmed.

Beady, P. J., and Macombee, J., concurred.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SIDNEY DILLON and Others v. EDWARD GILON and Others, Composing the Board of Assessors, and EDWARD V. LOEW and Others, Composing the Board of Revision and Correction of Assessments.

      Assessment for paving street in New York city — when railroad property in tunnels under the street cannot he assessed— when enclosed ornamental grounds cannot he assessed as public parks.

    Upon the hearing had on the return to a writ of certiorari, issued to review an assessment made to defray the expenses of improving and paving a portion of Fourth avenue, which had been in part devoted to railroad purposes, the railroad being below the surface of the street, and in part carried through tunnels containing openings in the crown of the wall forming the upper part of the tunnels, it was claimed that a portion of the expenses should have been assessed against the company.

      Meld, that as the board, whose action it was sought to review, had decided that there was no proof to show that the structure of the railroad company was in any manner benefited by this pavement, the company was not liablo to any assessment.

      Matter of Lange (85 N. Y., 307) followed.
    It was further contended in support of the writ that parks constructed upon the surface of the wall covering the tunnel should likewise have been assessed for part of the expenses of this improvement.

      Meld, that as the parks were simply ornamented grounds enclosed with iron railings, tending more to beautify the avenue itself than to promote any other object, and as they were not constructed in such a manner as to be useful and beneficial to the public, they were not such property as could be made to bear a part of the expense of the improvement.

      Matter of Twrfier (44 Barb., 46) distinguished.
    Certiorari to review an assessment made to defray the expenses of improving and paving Fourth avenue, from Seventy-second to Ninety-ninth street, in the city of New York.

      Trum.an H. Baldwin, for the relators.

      Albert L. Cole, for the respondents.
   Daniels, J.:

This avenue had been in part devoted, under the authority of chapter 702 of the Laivs of 1872, to the construction and operation of railroads. These railroads were below the surface of the street, and in part carried through tunnels containing openings in the crown of the wall forming the upper part of the tunnels. It was objected by the relators to the assessment that a portion of the expenditure for the improvement of the avenue should have been assessed against the property of the railroad company.' JBíit that position could only be sustained by proof of the fact that the property of the company was benefited by the pavement of the avenue. Such proof is no farther given than to show that the surface of the street, including portions of the wall of the tunnel, was covered with a concrete foundation before the pavement was laid upon it, and that was averred to have become necessary because of the height of the wall above the natural surface of the street. ' But thi,s was answered by proof of the fact, considered sufficient by the boards, that the concrete foundation was necessary for the preservation of the pavement itself after it was laid, and to avoid its sinking and producing depression in the street at the side of the wall extending above that part of the tunnel. And that fact was maintained to the satisfaction of the boards whose action it is sought to review by the writ issued in this proceeding. Beyond that it was not shown that the structure of the railroad company was in any manner benefited by this pavement. Its walls were as complete and secure before the pavement was laid as they were afterwards, and were made no more enduring by the laying of the pavement. There was, therefore, no proof in the case tending to establish the fact that the company was benefited by the improvement, and without being benefited it was not liable to be assessed for any portion of the expense, for that by the law was required to be borne by the' property alone benefited by the pavement. (Matter of Lange, 85 N. Y., 307.)

It was further contended in support of the writ that parks constructed upon the surface of the wall covering the tunnel should likewise have been assessed for part of the expenses of this improvement. And the case of Matter of Turfler (44 Barb., 46) has been cited as sustaining this position. But it fails to do so, for these parks were not constructed in such a manner as to be useful and beneficial to the public as those which were considered in that case. They were simply ornamented grounds enclosed with iron railings, tending more to beautify the avenue itself than to promote any other object. The spaces improved were portions of the avenue appropriated to the uses of the railroads under the authority of the act to which reference has been made. They do not appear to have been benefited in the least by the pavement, but they themselves were rather a benefit to the pavement, by enhancing and increasing the attractions of the avenue. In no legal sense were they such property as could be made under the statutes to bear a part of the expenses of this pavement. And as these are the only points upon which the action of the boards has been assailed, it follows that their proceedings should be affirmed, with costs.

Brady, P. J., concurred.

Proceedings affirmed, with costs.


text:
    ANN FORD, as Administratrix, etc., of OWEN FORD, Deceased, Respondent, v. JEREMIAH C. LYONS, Appellant.

      Negligence — duly of a master to protect an employee from injury while in the discharge of his duties.

    Upon the trial of this action, brought by the plaintiff to recover damages for the death of her intestate, which was alleged to have been occasioned by the negligence of the defendant, it appeared that the intestate, while working in the cellar of a building being erected by the defendant in the city of New York, in preparing mortar to be used by the bricklayers, was required to go to a tub of water in that portion of the cellar under the space left for the construction of the stairways. „ While near the tub the deceased was struck by something, but by what was not shown by any direct evidence, although the post mortem examination showed that his skull had been fractured by a blow upon the top of his head, and the facts proved were such as to warrant the jury in concluding that it was by some hard substance falling upon him from the top of the building. One witness testified that he heard a noise which he described as a kind of thud; that he looked up and saw the deceased stagger over towards the wall, and that he, the witness, caught the deceased just as he struck the tub. Evidence was also given tending to show that broken portions of brick did fall from the upper part of the building where the bricklayers were at work, and that there was no safe or secure covering to protect persons who were required to resort to the tub in preparing mortar, while on the part of the defense evidence was given tending to prove that a complete and secure covering was placed and maintained in this part of the building.

      Held, that the evidence was sufficient to sustain a verdict of the jury finding that the covering was defective, and that by reason of that fact the injury was receivéd.
    That there was evidence from which it could reasonably be concluded that the defendant had been careless and negligent, in not providing a proper covering for the protection of his men who were required to render services in this portion of the cellar of the building.
    * That the evidence was not such as necessarily to require a finding that the intestate was guilty of contributory negligence, or that he took this risk upon himself as a necessary incident of his employment.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Alex. Thain, for the appellant.

      James P. Nieman, for the respondent.
   Daniels, J.:

The intestate was injured by some substance falling upon his head while he was at work in the cellar of a building being erected on Monroe street, in the city of New York. Ne was preparing mortar to be used by the bricklayers, and in the performance of his duties was required to go to a tub of water in that portion of the cellar under the space left for the construction of the stairways. At the time of his injury the evidence tended to show that there were sixteen bricklayers at work on a scaffold in the fourth story, all laying brick. The deceased was near the tub at the time when he was struck, but by what he was struck was not shown by any direct evidence.taken upon the trial. But the facts were such as to warrant the jury in concluding that it was by some hard substance falling upon him from the top of the building. One witness, who was also at work at the time in the cellar, stated that he heard a noise which he described as a kind of thud; that he looked up and saw the deceased stagger over towards the wall, and that he himself caught him as he just struck the tub and was falling into it. And another witness, who was also present, observed him as he was stretched against the wash-tub. The post mortem examination disclosed the fact that he had been struck upon the top of his head, the blow producing a fracture at the base of the skull. It was not probable, as the evidence was given, that the deceased was injured in this manner either by coming in contact with the wall, or with the tub itself; but the decided probability was that he was struck by a substance falling from the upper part of the building upon Ms head as he was engaged in the rendition of the service required to be performed by him at the water-tub. The law does not require positive evidence to establish a fact of this description, but it may be inferred from circumstances with reasonable certainty ■indicating its existence, and those circumstances were made to appear upon the trial. It was further proved that broken portions of brick did fall from the upper part of the building, where the bricklayers were at work, and the probability was that it was by a substance of this description, falling in this manner, that the deceased was injured, for both a heavy substance and a fall from a considerable height would be requisite to produce this fracture of the skull.

It was proved upon the trial that the defendant had the contract for, and was constructing the brick-work of, the building. And evidence was given tending to establish the fact that above the tub, to which the men preparing the mortar were obliged to resort in the performance of their duties, there was no safe or secure covering which would protect them from exposure to these falling pieces of brick. One of the witnesses testified that there was no covering over the head where this man was at work; that there were a few bai'rels there, but that they did not fill the space so as to exclude falling substances from above. And the .evidence of another witness, sworn on behalf of the plaintiff, who was at work in the building, described the covering as having been made of barrels and boards. He was unable, however, to state whether open spaces existed in this covering, but he did not think that any were large enough for a brick or stone of the size mentioned to pass through. It was, however, made the subject of complaint in the building between some of the men and the foreman that the covering was not sufficient to protect the men who were working about the tub. On the part of the defense evidence was given tending to prove that a complete and secure covering was placed and maintained in this part of the building. JBut this evidence was not entitled to be adopted as controlling over the jury, for the reason that it did not permit, as a possibility, the occurrence of the injury happening to the deceased. As the case was made to appear, there was no other probable cause from which he could have been injured in the manner in which he was, than by the falling of some hard substance upon his head from the upper portion of the building, and that could have only fallen upon him through an opening in the covering over the space where he was at work. The jury did, therefore, have evidence before them sustaining the probability of the statements made by the witness Hughes that the covering was defectively insufficient, and that this man received a mortal injury by reason of that fact. It was for the jury, as the evidence was given, to determine whether this was so or not, and their verdict, finding the existence of that fact, cannot be held to have been so conspicuously against the weight of the evidence as to either justify or require the court to set it aside.

Assuming the fact to have been, as it must have been, found by th& jury before they could render the verdict which they did, then there was evidence from which it could reasonably be concluded that the defendant had been careless and negligent in not providing a proper covering for the protection of his men who were required to render services in this portion of the cellar of the building. For, as the law has been repeatedly affirmed, “as between servant and employer, the latter is bound to use reasonable care in the prosecution of the business in which he engages the former, and it cannot be made out upon principle, or from any case of authority, that he shall not be liable for damages arising from a failure to do so.” (Sheehan v. N. Y. C., etc., R. R. Co., 91 N. Y., 332, 334; Pantzar v. Tilly Foster Iron Co., 99 id., 368.)

The failure of the defendant to provide a reasonably safe and secure covering for this space was negligence on his part, even though he may have intrusted the immediate performance of the duty to the foreman in charge of the work, for the employer cannot delegate such a duty, which is his own, to another and relieve himself from legal liability because of the carelessness or default of that other.

The evidence was not such as necessarily to attribute carelessness to the intestate. He was in the discharge of his duties* as that was required in the course of his employment. It was part of his service he owed to his employer, and he was not required to assume that the latter would assign him to a dangerous place for the rendition of that service. Neither was it made to appear that he was aware of the fact that the covering over this space was insufficient or insecure. And as the evidence was presented the jury could very well conclude that he appeared to have been without fault contributing to the production of this injury. And for these reasons it cannot he concluded that the deceased took this risk upon himself as a necessary incident of his employment.

The evidence which was made the subject of exception was not improperly received, but if it was, no legal harm was produced by it in the ease, for it was entirely obvious without it, that if planks had been placed across the beams over the place where the deceased was at work, no substance could have fallen through from above that would have resulted in injury to him. The charge was in all respects as favorable to the defendant as it could be claimed under the authorities, and as no error has been found either on the part of the jury or of the court, the judgment and the order should be affirmed.

Brady, P. J., and Macomber, J., concurred.

Judgment and order affirmed.


text:
    ELIZABETH CARTER, Appellant, v. PETER BOWE, Sheriff, etc., and Others, Respondents.

      Evidence — when a judgment in favor of the bondsmen, who have indemnified a sheriff, bars an action against him, —right to prove that a mortgage was fraudulent, under an answer denying the title of the mortgagee — right of a witness to consult a memorandum — irrelevant matters tending to prejudice the jury against the plaintiff should not be received.

    This action was brought to recover the value of goods, claimed to belong to the plaintiff by virtue of one mortgage executed to her by her husband, and under another mortgage executed by the husband to a third person and assigned by Buoh third person to her, against the sheriff who had seized the property under an execution issued upon a judgment recovered against the husband. Upon the trial it appeared that in a former action, brought by the present plaintiff to recover a portion of the same property against the persons who had given a bond to indemnify the sheriff for the seizure and sale of the property under the said execution, a verdict had been rendered in favor of the defendants.

      Held, that this judgment was a bar to the present action to the extent of the property sought to be recovered in such prior action, but not as to the residue of the property seized and sold after the seizure complained of therein.
    That the right of the sheriff to justify the seizure of the property, upon the ground that the mortgages were made with intent to hinder and delay the creditors of the mortgagor, was not defeated by his failure to allege their fraudulent character in the answer; that as the answer alleged the property to be that of the judgment debtor, the mortgagor, any evidence legally pertinent to prove that fact was admissible under it.

      McKinley v. Howe (97 N. Y., 98) distinguished.
    The court refused to allow the mortgagor to look at a memorandum to refresh his memory, so that he might be able to state the articles which had been left in his store by one of the plaintiff’s assignors, upon the ground that the memorandum had not been identified.

      Held, error; that whatever the memorandum might have been, if it would refresh the recollection of the witness so that he could state the articles which were left, the plaintiff had a right to have that memorandum consulted by him, and to the testimony he might be able to give after referring to it.
    That it was error to allow the defendants to prove what the mortgagor had testified to in supplementary proceedings instituted against him, to which proceedings the present plaintiff was in no sense a party.
    That the court also erred in allowing answers to be given, concerning other property and premises previously occupied by the mortgagor, tending to create a prejudice in the minds of the jury against him, and to induce them in that manner to reject, the plaintiff’s claims for indemnity for the property seized and sold by the sheriff.
    Appeal from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, and from an order making an additional allowance of costs in the sum of $2,000.

      George P. Avery, for the appellant.

      Charles F. MaeLean, for the respondents.
   Daniels, J.:

The action was to recover the value of goods, contained in stores leased to Wellington A. Carter, and mortgaged in part to his wife and in part to Josephine S. Clason, and assigned by her to his wife, who is the plaintiff in the action. She also claimed to recover for other property asserted to have belonged to individuals assigning the same to her after the taking and appropriation of it by the defendants. This property was ail seized under executions issued upon judgments recovered against the mortgagor, and by way of defense it was claimed that the property in fact belonged to him. The two mortgages were filed, as that was required to be done by the statute, but the evidence tended to show that the mortgagor remained in the possession of the stores. That fact, however, was controverted by evidence on behalf of the plaintiff, to the effect that it was under the charge and superintendence of a person acting for her in the stores.

As to a portion of the property seized and sold, a preceding action was brought by the same person, who is plaintiff in the present action, and tried in the second district. Upon that trial a verdict was recovered by the defendants in the suit, who were the parties to a bond given to the sheriff to indemnify him for the seizure and sale of the property under the execution. As to such property, the court held the judgment to be a bar to this action against the sheriff and his deputies. And to that extent the ruling appears to have been correct, for a recovery in this action for the same property against the sheriff, if that could have been had, would have entitled him to maintain an action for indemnity upon the bond against the defendants in that suit, and in that manner deprive them of the effect of the judgment which had been recovered in their favor for the same taking. And to avoid that result the sheriff was entitled to rely upon the judgment for his protection, which had been recovered in favor of these bondsmen.

But as to the residue of the property seized and sold after the seizure complained of in the preceding action, the judg-' ment was not operative, but the controversy was open to evidence upon the point whether the property seized was liable to be taken and sold to satisfy executions issued against the mortgagor. The right of the sheriff to seize the property under the execution depended upon the question whether the mortgages were made in good faith and without any intent to hinder, delay, or defraud the creditors of the mortgagor, and whether property belonging to the plaintiff’s assignors had been seized and sold under the executions. The mortgages and transfers were not alleged in the answer to havo been fraudulently made, but that was riot necessary, and nothing said in the case of McKinley v. Bowe (97 N. Y., 93) requires that to be done to admit proof of that fact. What was legally necessary was that the answer should allege the property to be that of the judgment debtor, as it did, and any evidence legally pertinent to prove that fact was admissible under the answer. And proof tending to establish the fact that the mortgages were fraudulent, did tend to prove • that the mortgagor was the owner of the property, so far as to render it subject to executions issued against him.

This has been the course of proceeding for many years, not only unquestioned, but sanctioned by the courts, and the answer in this action must accordingly be held to have been sufficient.

In submitting the case to the jury the legal points upon which it depended were clearly stated to them by the court, but rulings were - made upon evidence excluded and received, which do not appear to be capable of being sustained. Among these was the ruling sustaining the objection that the witness, Wellington A. Carter, could not look upon a memorandum produced upon the trial to refresh his memory, so that he could state the articles which had been left in one of the stores by Mr. Aymar, who was one of the plaintiff’s assignors. Liberty was refused the witness to answer this question, on the ground that the memorandum had not been identified. But that objection was not well taken, for whatever the memorandum may have been, if it would refresh the recollection of the witness so that he could state the articles which were left, the plaintiff had the right to have that memorandum consulted by him, and to the testimony he might be able to give after referring to it. The object of the inspection or examination of the memorandum was to revive the memory of the witness, and whatever it may have been, if it would have been attended with that effect, and the plaintiff was entitled to an opportunity to prove that it would, the witness had the right to look at it. (Doe ex dem. Church v. Perkins, 3 Durn. & East., 749; Bigelow v. Hall, 91 N. Y., 145 ; Marcly v. Shults, 29 id., 346.)

The defendants were also permitted, against the objection and exception of the plaintiff, to prove what the mortgagor had testified to in supplementary proceedings carried on against him, and to which the plaintiff was in no sense a party. These statements as to her consisted of no more than his declarations, and they were not admissible as evidence against the plaintiff. ( Walker v. Henry, 85 N. Y., 130.) They were not proved to contradict denials made concerning them in the course of the examination of the witness, for which, after he was interrogated concerning them, they might very well have been proper, but as substantive evidence in the case, tending to defeat the plaintiff’s title. They were not in this form lawful evidence against her, and should have been excluded.

The plaintiff’s ease was also illegally prejudiced by answers allowed to be given concerning other property and premises previously occupied by him. As to one of those places the witness was allowed to answer the question whether he was a prompt rent payer. The statements or representations of the mortgagor concerning the fact that he represented Josephine F. Classon, and in that capacity promised to take care of a mortgage upon certain real estate not connected with the action, and other transactions, were drawn in by way of evidence having no relevancy whatever to the action, or the credit of the witness. The object of this evidence seems to have been to create a prejudice in the minds of the jury against the mortgagor, inducing them in that manner to reject the plaintiff’s claim far indemnity for the property seized and sold as his under the executions. This course was not justifiable. The object of the law is to secure the administration of justice between contesting claimants, upon the evidence given to develop the facts logically and legally bearing upon that disposition. It is not its purpose, by means of irrelevant and foreign matters, to permit one party to defeat another, either by holding him up to ridicule before the jury, or biasing their judgment by entirely foreign and extraneous matters. In these respects the plaintiff has a legal ground for complaint concerning the manner in which her action was tried at the circuit. And on that ground, as well as the exclusion of pertinent evidence offered to be given in her behalf, and the admission of illegal evidence against her, the judgment should be reversed and a new trial ordered, with costs to abide the event. And as that will dispose of the order making the additional allowance of costs, no further attention need be given to that subject.

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels, -J.

Judgment reversed, new trial ordered, costs to abide event.


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    WILLIAM CASWELL, Respondent, v. NATHANIEL D. PUTNAM and HENRY EARLE, Appellants.

      Conversion — a sale of stock without authority from the owner constitutes a conversion— the owner may sue for damages or to recover the proceeds of the sale — he is not hound hy unauthorized acts of his brokers.

    This action was brought to recover the profits realized upon the sale of certain shares of stock of the Union Pacific Railroad, which had been purchased for the plaintiff by the defendants under an order communicated to them by their agent, one Morgan. On July 81,1883, upon the order of this agent, they sold the shares at an advance. This latter order was given without the knowledge or authority of the plaintiff.

      Held, that the sale of the shares was, in judgment of law, a conversion which conferred upon the plaintiff a right to bring an action for conversion, or for the proceeds of the sale as he might elect.
    After the time of this sale other purchases and sales of stocks were made by the defendants under the direction of Morgan, without the knowledge or authority of the plaintiff, but in his name. In March, ■ 1884, the plaintiff, supposing that the shares of the Union Pacific Railroad were still held by the defendants, directed them to sell the same, whereupon they sold that number of the shares of the stock of that company at a loss, which they charged to the plaintiff and rendered an account of all the dealing in stocks which had been had in his name.

      Held, that as the plaintiff was in no way privy to the purchases and sales made in his name, without authority from him, he was not bound by them, nor by his order to sell the shares in March, as such order was inoperative, for the reason that the defendants had long since ceased to hold these shares for him.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      Wager Sioayne, for the appellants.

      Thomas Thacker, for tbe respondent.
   Daniels, J.:

The action was for the amount realized by way of profit on the sale by the defendants, as stockholders, of 100 shares of the stock of the Union Pacific Railroad Company. The shares were purchased by the defendants for the plaintiff, under an order communicated to them by their agent, William G. Morgan. On the 31st day of July, 1883, he ordered them to sell the shares, which they did, obtaining the advance thereby on the cost, which the plaintiff has been adjudged entitled to recover. This order was given without the knowledge or authority of the plaintiff. And the shares being at the time his property, the sale made of them was, in judgment of law, a conversion of the shares, although the defendants made it in good faith, supposing that the plaintiff had authorized it. For any disposition of another’s property without his authority or consent, is a conversion of it by the person or persons disposing of it. (Boyce v. Brockway, 31 N. Y., 490; Spraights v. Hawley, 39 id., 441.)

By this conversion of the shares the defendants turned the property into money, and to redress the wrong which the defendants were chargeable with, by making this change in the property, the plaintiff had an election of remedies. He could either bring an action for the conversion, or for the proceeds of the shares, as so much money received for his use by the defendants. (Strong v. National Mechanics' Bank, 45 N. Y., 718; Abbott v. Blossom, 66 Barb., 353; Taussig v. Hart, 58 N.Y., 425 ; Comstock v. Hier, 73 id., 269.) And the latter seems to have been the course adopted in the action, as the recovery was measured by the amount the plaintiff was entitled to out of the proceeds of the sale.

After the time when this sale took place, other purchases and sales of stock were made by the defendants, under the direction of their agent, Morgan, without the knowledge or authority of the plaintiff, but in his name. And he, in March, 1884, still supposing and believing that the shares he had ordered to be purchased, and which in fact were purchased for him, were held for him by the defendants, directed them to sell the shares, and they did sell'that number of Union Pacific shares, in compliance with that direction, charging him with the loss resulting from the sale. They also rendered him an account stating the dealings in stocks had through them in his name, but which he, with the exception of the sale made on the last day of sale, disaffirmed after the facts came to his knowledge. The defendants have denied his right to do that, insisting that he should either affirm or disaffirm these dealings m toto. And authorities have been cited by the learned counsel for the defendants maintaining that to be the law applicable to the dealings of a principal with his agents. But this case is not within that legal rule, for the only dealings had between the plaintiff and defendants was their purchase of the 100 shares of stock for him, which they sold without his authority on the 31st day of July, 1883, and it is wholly out of that dealing and sale that his legal rights and their obligations have arisen. What was after-wards done while it was in his name were not dealings with the plaintiff but with their own agent, who for that purpose fraudulently made use of the plaintiff’s name. It was not a wrong which he was in any manner connected with or responsible for, but it was the wrong of the defendants’ own agent, perpetrated by him on them, and for the consequences of which he alone is legally liable to indemnify them. The plaintiff was in no way either in fact or law privy to these dealings, and in no way affected by them. The order he gave for the sale of his shares in March was wholly inoperative, for the reason that the defendants had long before that time ceased to hold those shares for him. Their rights and obligations had then become fixed. His right of action had accrued, although it was without his knowledge, and it could not be afterwards divested by his order to sell what had been then disposed of and was beyond the power or control of the defendants, nor by the unauthorized and fraudulent acts of the defendants’ own agent, having no power whatever to represent the plaintiff. (McKnight v. Dunlop, 1 Seld., 537, 544.)

These facts furnished no legal defense to the action and the judgment should be affirmed.

Brady, P. J., concurred.

Present — Bbady, P. J., and Daniels, J.

J udgment affirmed.


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    HENRY W. GRAY, Appellant, v. GEORGE T. GREEN, Respondent.

      Statute of limitations — when the right of a former member of a dissolved partnership, to sue his copcm'tnm' for a settlement, arises — Oode of Givil Procedure, sec. 388.
    This action was brought in August, 1884, for the settlement of the affairs of a partnership formed by the plaintiff and defendant in January, 1870, and dissolved in October, 1872. A defense set up by the defendant that the action was barred by the statute of limitations, because not brought within ten years after the right to commence the action had accrued, as required by section 388 of the Oode of Civil Procedure, was sustained by the referee, who held that the light to bring the action accrued when the dissolution of the partnership took place.

      Held, that the time fixed by this section did not commence to run until a right to bring and maintain an action for the redress sought for existed.
    That it did not follow from the fact of the dissolution of a partnership that either partner could, at the time when that took place, immediately institute and maintain an action for the settlement of its affairs.
    That where the business of the partnership requires for its completion the continuance and completion of certain transactions, and no default or misconduct can be alleged on the part of either of the parties, as a ground of action, in such case the law will permit a reasonable time to be taken for the winding up of the partnership affairs before a right of action will accrue.
    That as it appeared in the present case that the firm was, at the time of its dissolution, indebted in the sum of about $200,000, and owned property and demands, some of which had not yet been collected, and that at the time of the dissolution of the firm it was agreed that its affairs should be liquidated by the plaintiff, and as there was nothing to show unreasonable delay in liquidating its affairs, the case contained no facts which would enable the referee to determine that such a lapse of time had taken place as would entitle the parties, or either of them, to disclaim the binding effect of this agreement, and that he erred in sustaining the defense.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      John R. Dos Passos, for the appellant.

      O. C. Suydam, for the respondent.
   Daniels, J.:

The plaintiff and defendant were partners in business as brokers and dealers in stocks. Their partnership commenced on the 1st of January, 1870, and it was dissolved on or about the 21st of October, 1872, and this action was brought, for the settlement of the partnership accounts, in August, 188é. The defendant, by way of a defense, set up the statute of limitations, that the action had not been brought within ten years after the right to commence it had accrued, as that was required by section 388 of the Code of Civil Procedure. On the trial so much evidence was taken before the referee as was deemed necessary to present this defense for his decision, and as he concluded it to be maintained, he dismissed the plaintiff’s complaint. Whether he was right or not in directing this disposition of the action depends upon the construction which should be given to this section of the Code. The limitation prescribed by it is the period of ten years after the cause of action accrues. What was intended by the legislature by this language was the existence of the right to bring and maintain an action for the redress claimed to be recovered in the suit, and it is from the time that right becomes vested in the party that the statute commences to run, and from which the period mentioned in it is to be measured. The learned referee concluded that this right of action accrued when the dissolution of the partnership took place, and the action was disposed of upon that view. But it does not follow, from the dissolution of a partnership, that either partner can, at the time when that shall take place, immediately institute and maintain an action for the settlement of its affairs. Cases may well be imagined where that can be done and where the right of action immediately accrues, but where the business of the partnership requires for its completion continued transactions, and no default or misconduct can be alleged on the part of either of the parties as a ground of action, there 'the law will permit a reasonable time to be taken for the completion of the partnership affairs before a right of action will accrue. Of course that could not be prolonged by unnecessary delay or misconduct on the part of either of the parties, but, as long as no delay of that description or any misconduct intervenes there, neither of the parties would be permitted to appeal to the authority of a court of equity to take the management of the business out of their hands and settle and adjust it through its own instrumentalities. This principle has been considered in quite a large class of cases where the courts have announced the conclusion that the statute will only be held to include the period of unexplained delay in the settlement and adjustment of the partnership affairs. This was considered in Tatam v. Williams (3 Hare, 347, 358), where that was the conclusion of the court predicated upon authorities at that time stated. In Todd v. Rafferty (30 N. J. Eq., 254) a similar point was examined resulting-substantially in a like conclusion; and so it was in Hammond v. Hammond (20 Geo., 556), where the general principle was considered to be established that “the statute of limitations does not commence to run in favor of one partner against the other, even after a dissolution of the copartnership, so long as there are debts due from the partnership to be paid or debts due to be collected.” And a like view was taken in Massey v. Tingle (29 Mo., 437), where it was said, in the course of the opinion, that “ we know of no principle which declares that the statute of limitations begins to run against a claim to adjust and settle partnership accounts from the time of its dissolution.” (Id., 438, 439.) And equally pointed was the ruling of the court in Foster v. Rison (17 Gratt., 321). This case arose under the provisions of a statute of the State of Virginia declaring an action to be barred for the settlement of partnership accounts, after five years from the cessation of the partnership dealings, and it was held that collecting in outstanding firm debts were such dealings and prevented the running of the statute. And in Causler v. Wharton (62 Ala., 358) the court considered the principle to be a sound one, that where the partnership affairs are unsettled on a dissolution, and one partner, by a written agreement with the other, leaves the partnership assets with him to dispose of whenever he can do so at a fair price, a continuing trust is thereby created and the bar of the statute of limitations will not begin to run against the right to an accounting of the partnership dealings so long as the party to whom the assets were delivered acts under the trust or admits that it is still continuing. And Cannon v. Copeland (43 id., 201) sustains the same general proposition. It was likewise considered in Adams v. Taylor (14 Ark., 62), and Lowrence v. Rokes (61 Me., 38) sanctions the same general principle.

It is true that it' will not apply to a case where the business of the partnership has been brought to a complete conclusion, as it is by a general assignment or proceedings in bankruptcy. The former was the case of McKelvy’s Appeal (72 Penn., 409) and of Wilhelm v. Caylor (32 Md., 151). In that class of cases, when the business of the partners has been terminated, the right to an accounting at once accrues and an action may be immediately maintained for that object.

But neither these cases, nor the principle which they maintain, have any application to the present action, for it was proved upon the trial that at the time of the dissolution of this partnership the firm was indebted in the sum of about $200,000. And it then was the owner of property in addition to three demands which have not yet been collected, but one of which was paid in part in May, 1879, April, 1881, February, 1882, and March, 1884. By the terms of the partnership agreement, the losses and profits of the business were to be divided between the parties by the plaintiff receiving four-fifths and sustaining an equal amount of the losses, and the defendant receiving one-fifth and sustaining that portion of the losses. And, at the dissolution of the firm, an agreement was made between the parties by which the plaintiff was constituted the liquidating partner of the firm. That placed its unfinished business and its management and adjustment in his hands, and under his control. And if an action had been brought at that time, either by himself or the defendant, for an accounting and settlement of the partnership affairs, this agreement would certainly have been a defense to the suit, and a right of action' accordingly had not then arisen for this purpose in favor of either of the parties. The extent and application of the agreement was not definitely fixed, but under it the plaintiff had a reasonable time to be measured by the state of the partnership property and indebtedness, to liquidate and adjust its affairs. What that reasonable time may be has not been shown by anything which transpired upon the trial, it evidently having been deemed inappropriate to the simple question entertained by the referee of the application of the statute of limitations. And it cannot, therefore, be held, from anything which transpired, that ten years had expired since a reasonable time had elapsed to carry into effect the intent of the parties manifested by this agreement. And for that reason the case contains no facts upon which the point can be considered or determined, whether such a lapse of time had taken place as would entitle the parties, or either of them, to disclaim the binding effect of this agreement. While it has continued, and was in process of reasonably vigilant performance by the plaintiff, the affairs of these parties could not be taken from his hands and brought for adjustment within the jurisdiction of a court of equity, for the parties had practically disabled themselves, by making the agreement, from disaffirming it as long as no default or unreasonable delay appeared on the nart of the plaintiff, and no delinquency should be proven against the defendant. Such a default or delinquency is not to be presumed, but it is to be made the subject of proof, and from that time only would a cause of action accrue under this provision of the statute. When the statute should be held to apply to the rights of these parties must depend upon the facts attending the settlement of the partnership affairs, so far as they have been made the subject of settlement. Its debts appear to have been paid, but what period of time was requisite for that purpose has not been shown. Neither does it appear what time was necessary to appropriate the partnership property to this object. But it was further proven upon the trial that efforts had been directed to enforce and collect demands due and owing to the firm up to the time of the commencement of the action, and that they were in some measure pending at the time of the trial; and the defendant himself, in July, 1881, assented to legal proceedings upon one of these demands, but with the proviso that he should not be charged with any portion of the expense. What particular effect these proceedings should have upon the rights of the parties, or whether any can be attributed to a very small indebtedness of the firm still outstanding, it is not necessary at the present time to consider, for it is evident that the referee was wrong in holding that the statute of limitations took effect upon the rights of the parties at the time when the dissolution of the partnership occurred. No right of action then accrued in favor of one against the other, but that right was extended certainly as long as the plaintiff diligently proceeded under the agreement with the settlement of the partnership affairs; and what period of time may have been consumed in doing that can only be made to appear by proof exhibiting the manner in which the business was done by the plaintiff.

It has been suggested that as the plaintiff is still acting under the agreement in the enforcement of the three uncollected demands, that the action is premature on that account; but that point was not considered or decided by the referee, and when it shall be it may possibly be answered by the circumstance that the defendant has been requested and refused to adjust his own alleged indebtedness arising out of the partnership transactions, and the settlement of its affairs so far as that has heen consummated. As the case now appears it should not have been dismissed upon the effect' of the statute, but it should have been fully heard and decided after hearing the evidence pertaining to the issues which the parties should be able to produce.

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

Brady, P. J., and Macomber, J., concurred.

Judgment reversed, new trial ordered, costs to abide eyent.


author: Macomber, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. D. A. SKINNELL v. THOMAS B. RAND and Others, Composing a General Court-Martial, etc.

      Oourts-martial — when their decision cannot be reviewed' on certiorari — what acts justify the conviction of an officer of conduct unbecoming an officer and a gentleman.

    Tlie relator, a second lieutenant of a regiment of the national guard, was, after having heen duly summoned before and heard by a general court-martial, upon» charges and specifications accusing him of conduct unbecoming an officer and a gentleman and prejudicial to the service, convicted of that offense and sentenced to be censured and to pay a fine of fifty dollars. The evidence-established the fact that on the 24th day of October, 1883, the accused, while-wearing his uniform, as second lieutenant, induced a marker at the national rifle range at CreedmDor, Long Island, by paying him the sum of fifty cents, to give to the relator a record of a score for rifle practice, to which he was-not entitled.

      Held, that as the court had jurisdiction of the subject-matter and of the person of the accused, its decision could not be reviewed by a writ of certwra/ri if there was any evidence in support of the charges.
    That the facts alleged, if proved, justified the conviction and punishment of the relator for a violation of the provisions of section 205 of the Military Code, and section 135 of the General Regulations for the Government of the Military Forces of the State.

      Hearing upon the return to a -writ of certiorari issued to review the proceedings, finding and sentence of a general court-martial of the National Guard of the State of New York, whereby the relator, the second lieutenant of company B of the ninth regiment of the national guard, was found guilty of conduct unbecoming an officer and a, gentleman, and sentenced to be censured and to pay a fine of fifty dollars.

      Thomas F. Byrne, for the relator.

      Henry L. Sjprague, for the respondents.
   Macomber, J.:

The relator, in April, 1885, was duly summoned before a general court-martial and served with copy of the charges and specifications, accusing him, in different forms, of conduct unbecoming an officer and a gentleman, and prejudicial to the service. At the hearing before the court-martial, the relator interposed a demurrer, which was overruled, and thereupon the plea of not guilty was interposed.

The evidence established the fact that on the 24th day of October, 1883, the accused, while wearing his uniform as second lieutenant, induced one Blucher E. Hinriclis, a marker to the national rifle range at Creedmoor, Long Island, by paying him the sum of fifty cents, to give to the relator a record of a score for rifle practice to which he was not entitled. The witness Hinrichs testified that on the day named the accused gave him fifty cents, and stated that he wanted to qualify, and then commenced to shoot, but not making good shots, stated that he wanted a score of twenty-six, and this witness immediately reported the fact, together with the money, to Mr. Yose, an officer of the rifle association. Another witness was called by the name of Stephen E. Glover, also a scorer, who testified that on the same day, at another rifle range at Creedmoor, the accused came to him without a rifle and handed the witness a score card, and, in answer to the scorer’s question whether he was going to shoot, stated that he was not; that he could not shoot, and gave the scorer fifty cents and said he wanted a score; that thereupon the witness gave him a score, which was also reported, together with the money, to the same officer of the rifle association.

The evidence in behalf of the accused did not vary the fact, recited by the other witness, of the payment of the money to the scorer, but it had a tendency to establish the fact that, as was claimed by the accused, the money was paid for the purpose of securing fair and just consideration by the scorers to the men of the same regiment with the accused.

The court-martial, however, acting upon what appears to us to be a preponderance of the evidence, found the accused guilty of paying to each of the scorers fifty cents, and of asking and receiving scores at the two ranges to which-he was not entitled. The court had jurisdiction of the subject-matter and of the person of the accused, and consequently if there was any evidence in support of the charges and specifications its conclusion could not be reviewed by a writ of certiorari. (The People ex rel. Spahn v. Townsend, 10 Abb. N. C., 169; The People ex rel. Frey v. The Warden, etc., 100 N. Y., 20.)

By the two hundred and fifth section of the Military Code of the State every commissioned officer, in time of peace, may be punished for disobedience of orders, neglect or ignorance of duty or unofficer like conduct, or disrespect to a superior officer, or for neglect to comply with any of the requirements of that act, and may be sentenced to be cashiered, incapacitated from holding any military commission, fined in a sum not exceeding $100 or reprimanded, or may be sentenced to all or either of such fines and penalties in the discretion of the court. The provisions of the Military Code are supplemented by general regulations for the government of the military forces of the State, which, by the statute as well as by the obligation taken by each officer when he enters the national guard, are equally binding with the provisions of the Military Code itself.

Section 185 of the G-eneral Regulations of the Military Forces is as follows: “ Military courts will also exercise jurisdiction upon the proper charges of an unofficer-like conduct or disrespect to a superior officer when the offense is committed by an officer while wearing his uniform, or any part of it, though he may not be on duty.” The finding of the court-martial is that the accused, at the time of the commission of the alleged offense, was in the uniform of his regiment and was competing for the marksman’s badge; other than that there is no evidence that the accused was in the perfonnance of any specific duty. It may be conceded that the accused was not, at the time of the acts complained of, in the performance of any duty which he owed to the State or to his superior officers. It appears that he was a member of the National Rifle Range Association, and was consequently subject to its rules and regulations. Iiis practice with the rifle, even if a pastime, was in the direction of the service in which he had volunteered. It was a portion of his military training. He seems to have been visiting the grounds of the rifle association with many of the men of his regiment, and while technically not on military duty, he saw fit to wear the uniform which had been provided him while ostensibly engaged in a public competition for a medal. Being thus in his uniform and desirous of acquiring a name for marksmanship, to which he was not entitled by merit, he unlawfully and corruptly, and in a public place, induced the scorers to give him a score card of a much higher rank than he could have obtained honestly. The offense may be likened somewhat to acts which have been from time immemorial condemned by the courts and classed as misdemeanors at common law, such as using false weights and measures, playing with loaded dice and marked cards and other like cheats. Becoming publicly intoxicated while wearing military uniform is a familiar instance of an offense against gentlemanly and officer-like conduct required in time of peace. Buying or obtaining corruptly a record as a marksman while so attired, and when attended by many comrades in a 'public place, must be deemed equally a military offense, as it brings scandal and disgrace upon the national guard.

The judgment, findings and sentence of the court-martial should be affirmed and the writ of oertiora/ri dismissed, with costs.

Beady, P. J., and Daniels, J., concurred.

Judgment affirmed and writ dismissed, with costs.


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    JAMES J. VICTORY, Appellant, v. JULIA KRAUSS and WILLIAM F. PITSCHKE, as Executors, etc., of JULIUS PITSCHKE, Deceased, Respondents.

      Action for injwi'ies resulting from, a landlord’s knowingly letting unhealthy tenements — it does not survive the death of the landlord — Code of Givil Procedure, sea. 3343, sub. 9.
    The complaint in this action alleged, that while the plaintiff was a tenant of the defendants’ testator, three of the plaintiff’s children sickened and one of them died by reason of the defective construction of the tenement,which caused deleterious gases to permeate the house and to penetrate the apartments of the plaintiff; that the defendants’ testator negligently suffered the premises to become in such a condition as to be dangerous to life and detrimental to health, and negligently rented the same to the plaintiff without informing him of their dangerous and unhealthy condition.

      Held, that assuming that the plaintiff had originally a good cause of action against the testator, yet it was an action for “an injury to the person, either of tbe plaintiff or of another,” within the meaning of subdivision 9 of section 3343 of the Code of Civil Procedure, and was not maintainable against his personal representatives.

      Hegerich v. Keddie (99 ÍT. Y., 258); Moi'ioi'ty v. Bartlett (Id., 651) followed.
    Appeal from a judgment in favor of tbe defendants and from an order of tbe Special Term sustaining tbe demurrer of tbe defendants, interposed upon tbe ground that the complaint does, not state facts sufficient to constitute a cause of action.

      Louis F. Post, for tbe appellant.

      James M. Fitzsimons, for tbe respondents.
   Macomber, J.:

At the time tbe plaintiff was a tenant of tbe defendants’ testator, one Pitsehke, three of bis children sickened and one of them died, as is alleged in tbe complaint, by reason of tbe defective construction of a tenement, by which deleterious gases permeated the bouse and penetrated the apartments of tbe plaintiff. The charge against tbe defendants’ testator is, that he negligently suffered tbe premises to become in that condition and negligently rented tbe same to tbe plaintiff, without informing him of their dangerous and unhealthy condition.

By the demurrer two questions are presented for our consideration, the first of which is, whether the cause of action, admitting that there was one originally against the landlord, survives and is maintainable against his personal representatives. If that is decided against the plaintiff, it will not be necessary to consider any other question which has been the subject of argument by counsel.

The cause of action comes under the head of personal injury, as defined by subdivision 9 of section 3313 of the Code of Civil Procedure, as it is an “ injury to the person, either of the plaintiff or of another.” One of the most comprehensive rules in determining the question whether or not the cause of action survives in favor of, or against, personal representatives is its assignability. It is the guide for determining for what injuries executors can be sued, as well as for what injuries they can maintain an action. Section 1910 of the Code of Civil Procedure excepts out of the category of matters that may be assigned causes of action to recover damages for personal injury, and places them on the same basis as a breach of promise of marriage. Two recent cases in the Court of Appeals have finally and completely settled this question in accordance with the plain language of the Code, namely, the eases of Hegerich v. Keddie (99 N. Y., 258) and Moriorty v. Bartlett (Id., 651), and these render any extended discussion of the question quite superfluous.

The judgment is affirmed, with costs.

Brady, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


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    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, THOMAS A. DAVIES and REUBEN H. CUDLIPP and Others, Appellants, v. RUSSELL SAGE, Respondent.

      Assessments for local improvements in If ere York —1813, chap. 86, see. 175 — no personal liability is imposed upon an owner whose name does not appear on the rolls — swell owner is not personally liable to a lienor paying the assessment in order to preserve Ms lien.

    In the year 1869 the plaintiff Davies gave a mortgage upon real estate, then owned by him, to the plaintiff company to secure his bond for $44,000. Subsequently other mortgages were given upon the same real estate to sundry persons, which were finally assigned to the defendant Sage, who foreclosed them in an action to which the first mortgagee was not made a party, Sage buying the property at the sale and receiving and recording a deed thereof on February 17,1876. OnDecember 29, 1876, an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the record. In April, 1877, the company foreclosed its mortgage, making Sage a party defendant, and procured a judgment under which the property was sold and a judgment for a deficiency entered against the plaintiffs Davies and Cudlipp.
    The company having, on May 25,1877, paid the amount of the assessment for the boulevard improvement, sought in this action to recover against Sage the amount so paid, under a provision contained in the act under which the assessment was laid (chap. 86 of 1813), to the effect that if any assessment be paid by any person, when by agreement or law the same ought to have been borne and paid by some other person, it should be lawful for the person paying to sue for and recover the money so paid.

      Held, that although the assessment was, under the act of 1813, good and sufficient to bind the real estate, yet as Sage’s name did not appear in the assessment books it created no personal liability which could be enforced against him.
    That by paying the amount of the assessment the company did no more than to relieve the land of the lien of the assessment ostensibly for its own benefit, and did not thereby create a personal liability against the defendant which could be enforced in this action.

      It seems, that if the city itself had possessed the right to pursue the defendant Sage personally for the collection of the assessment the case would have been essentially different.

      Mutual Life Insurance Company v. Sage (28 Hun, 595) distinguished.
    Appeal from a judgment of the Special Term dismissing the complaint upon the trial.
    The action was brought to recover the amount of an assessment made upon certain mortgaged premises paid by the plaintiff holding the premises under a mortgage foreclosure. The claim was based upon section 175 of chapter 86 of the Laws of 1813, to the effect that if any assessment be paid by any person, when by agreement or law the same ought to have been, borne and paid by some other person, it shall be lawful for the person paying to sue for and recover the money so paid.

      Julien T. Davies and Edwim, Coffin, for the appellants.

      D. T. Walden and A. J. Yanderpoel, for the respondent.
   Macomber, J.:

In the year 1869 the plaintiff, Thomas A. Davies, being then the owner of certain premises in the city of New York, mortgaged them to the plaintiff, the Mutual Life Insurance Company, to secure the mortgagor’s bonds in the sum of $44,000. Subsequently other mortgages were made by the owner to sundry persons, which ultimately came into the hands of the defendant Sage, who foreclosed the same, buying in the property at the sale had therein under the judgment of foreclosure, taking the deed to himself, which was recorded on the 17th day of February, 1876.

The owner of the prior mortgage was not made a party to that action. On the twenty-ninth day of December following an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the assessment record. The Mutual Life Insurance Company subsequently, and on the 5th day of April, 1877, foreclosed its mortgage, making the defendant Sage a party defendant therein, and upon a sale of the premises under this judgment a deficiency was adjudged against the plaintiffs Davies and Cudlipp. The insurance company, on the 2oth day of May, 1877, paid the amount of these assessments for boulevard improvements, amounting to the sum of $22,896.63, for which sum this action is brought, together with a large amount of back taxes.

In the judgment, in the action in which the defendant Sage was plaintiff, the clause was inserted requiring the referee to deduct from the amount -received upon the sale, and to pay out of such moneys, after deducting his own fees and expenses, any lien or liens upon the premises so sold at the time of such sale for taxes and assessments.

Upon the former appeal in this action (28 Hun, 595) it was held that no recovery could be had by the plaintiffs, against the defendant, for any portion of the taxes which had been paid by them, but that the claim for the payment of the assessment for the boulevard improvements rested upon different considerations, and as the facts were then disclosed, the court was of the opinion that the plaintiffs could recover therefor. Upon the second trial it was made to appear, as it had not upon the previous trial, that the defendant Sage’s name nowhere appeared in the assessment books of the city, and it is substantially for that reason that the trial court has again dismissed the complaint. It is contended by the counsel for the defendant, and. as we think, correctly, that, though the assessment under the act of 1813 (chap. 86, 2 R. L., 1813, 407, 408) was good and sufficient to bind the real estate, yet it created no personal liability which could be enforced against the owner. The one hundred and seventy-fifth section of that act provides that the assessment be made among owners or occupants of the houses- or lots. It is difficult to perceive, under the rules regulating the imposition of assessment of land for local improvements which have been long well established, how a personal liability can be made out against the owner or occupant unless his name appear upon the assessment-roll or lists. The subsequent' legislation (chap. 410, Laws of 1867, as well as chapter 326 of the Laws of 1840), which seem to confirm this view, has at least a legislative interpretation of the then existing law. Section 5 of the Laws of 1867 is a provision based on the assumption that prior thereto all such assessments would be held void which did not contain the name of the owner or owners of the land. “ No tax or assessment shall be void in consequence of the name of the rightful owner or owners of any real estate in said city not being inserted in the assessment-rolls or lists, but in such case no tax shall be collected except from real estate so assessed.”

In Haight v. The Mayor (99 N. Y., 280) it is, in substance, stated that the owner’s name is immaterial to the validity of an assessment, and is material only for the purpose of imposing upon him a personal liability. But the case in that action did not arise under the act of 1813. In Platt v. Stewart (8 Barb., 493), which was an assessment under the act of 1813, it was held that the assessment, which was noted as being against the estate of Garrison Stewart, was void, because it did not disclose the name of the owner or occupant, but that decision would not apply to the opening of streets under the act of 1813. (See, also, Mann v. The City of Utica, 44 How. Pr. R., 334; Whitney v. Thomas, 23 N. Y., 285; Du Bois v. Webster, 7 Hun, 373 ; Chapman v. The City of Brooklyn, 40 N. Y., 372; Newell v. Wheeler, 48 id., 486; Trowbridge v. Horan, 78 id., 439.)

The argument of the learned counsel for the plaintiffs is, that the rights of his clients are not worked out through the doctrine of subrogation to the rights of the city, but rest on the act of 1813, which gives, as he claims, in plain words, a right of action against the rightful owner by any person who shall have paid the assessment. But this argument fails vitally, inasmuch as it assumes that a personal liability of a party may be created by a voluntary act of another person alone, a proposition which the statute did not contemplate and to which we cannot give our assent. A party cannot obtain, by voluntarily paying an assessment, a greater right than the city itself had against the owner of the property assessed.

Therefore, when the plaintiff paid the amount of the assessment for the boulevard improvements, which were made upon the land at the time that the defendant was the owner of it, they did no more than to relieve the land of the lien of the assessment ostensibly for their own benefit. They could not thereby create a personal liability against the defendant where none had before existed. Had the city itself possessed the right to pursue the defendant personally for the collection of the. tax, the case would be essentially different.

The judgment should be affirmed, with costs.

Brady, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM J. HADDOCK and Others v. ARTEMUS S. CADY, Clerk of Arrears.

      Redemption of lands sold in New York city for the non-payment of taxes— consólidation act, chap. 410 of 1882.
    Where lands in the city of New York have been sold for the non-payment of taxes, and certificates have been delivered by the clerk of arrears to the purchasers, the lands must be redeemed by the owner, if at all, by the payment of the sum prescribed by section 941 of the consolidation act (chap. 410 of 1882), that is, the sum mentioned in the certificate, together with interest thereon at the rate of fourteen per cent per annum from the date of such certificate.
    Appeal by both the relators and the respondent from an order of the Special.Term, granting in part and denying in part a motion by the relators for a peremptory mandamus.

      ■ Certain real estate of the relators was assessed for taxes for the years 1877, 1878 and 1879. On the 7th day of May, 1883 (all of said taxes remaining unpaid), the premises were sold by the clerk "of arrears to satisfy the same and were struck off for the sum of $1,438.60, being the amount of the taxes with interest at seven per cent per annum, together with the costs of advertising, and that sum was, on May 29, 18S3, received by the clerk of arrears from the purchaser.
    The clerk of arrears subsequently advertised that the premises had been sold on May 7,1883, and gave notice that unless redeemed by the payment, for the use of the purchaser within two years from the sale, namely, from May 7, 1883, of said sum of $1,438.60, with interest at fourteen per cent per annum, a lease would be delivered to the purchaser. On May 8, 1885, no such redemption having been made, the comptroller, in the name of the mayor, aldermen and commonalty of the city of New York, executed to said purchaser a lease of the premises, but the same has not been delivered but is retained in the possession of the clerk of arrears of taxes. On the 24th day of December, 1885, the relators tendered to the clerk of arrears the amount of taxes imposed for the years 1877, 1878 and 1879, with interest at seven per cent from the date of the confirmation of the taxes in each year to the date of the tender, winch, was refused by the clerk of arrears. The court below granted a peremptory mandamus to the clerk of arrears commanding him to receive the amount of the purchase-money at fourteen per cent from May 29, 1883, and give a certificate of redemption, and from that order both parties appeal.

      John O. Shaw, for the relator.

      John Townsend, Jr., and Henry Zacombe, for the clerk of arrears.
   Macomber, J.:

The learned judge at Special Term is of the opinion that there is an irreconcilable conflict between sections 918 and 941 of the consolidated act, which sections in a large part, if not wholly, control the decision of this case.' Section 941 says, among other things: “ If the person or persons claiming title to said lands or tenements, or some other person, shall not, within two years from the date of the before mentioned certificate, pay to the said clerk of arrears for the use of the purchaser or purchasers, his, her or their heirs, executors, administrators or assigns, the sum mentioned in such certificate, together with the interest thereon at the rate of fourteen per cent per annum from the date of such certificate, the said comptroller, in the name of the mayor, aldermen and commonalty, at the expiration of the said two years, shall execute to the purchaser or purchasers, his, her or their heirs, executors, administrators or assigns, a lease under the common seal of the city,” etc. Section 918 declares that interest shall, after a certain period, be charged and collected at the rate of “ seven per cent per annum on all arrears of taxes and assessments returned to the clerk of arrears from the time they became due until paid.” ■

If, however, we examine the several sections of the consolidated act in their order it will be seen that there is in reality no conflict between the sections already referred to, although there is in them much infelicity of expression and arrangement. The policy of this portion of the consolidated act seems to be to divide all the several periods in which taxes may be paid into three parts, and to adjust the rate of interest accordingly as the taxes are paid during the one or the other of those periods. Section 917 declares that if the assessment shall remain unpaid for the period of sixty days after the date of entry thereof in the records, it shall be the duty of the officer authorized to collect and receive the amount of such assessment to charge, collect and receive interest thereon at the rate of seven per cent per annum, to be collected from the date of such entry to the date of payment. Section 918 follows, the first clause of which might well be attached to section 917, and by it the rate of interest is still stated to be seven per cent on all arrears of taxes and assessments returned to the clerk of arrears from the time the taxes became due. It then says that this rate shall apply to the taxes and assessments remaining due and unpaid, for the non-payment of which the lands and tenements liable therefor shall have been sold since the 16th day of March, 1881, or thereafter, but shall not apply to or affect the rights of purchasers at sales for taxes before March 16, 1881, or to authorize the redemption of lands for sums less than those collectible for such redemption under the provisions of laws then existing.

Up to this point voluntary payments, made when due and without resort to sales of lands only, are contemplated and the rate of interest is seven per cent. Thence follows section 926, which directs the manner of advertising lands for sale for unpaid taxes and the manner of the sale, and requires the clerk of arrears to give the purchaser a certificate in writing describing the lands so purchased, the terms of years for which the same were sold and the sum paid therefor, and the time when the purchaser will be entitled to a lease thereof. The lands must now be redeemed by the owner, if at all, by the payment of the sum prescribed in section 941, which, as has already been seen, requires the owner or his representative to pay the amount of the taxes with certain expenses and interest at the rate of fourteen per cent, otherwise a lease of the lands will be given to the purchaser and the purchaser will be let into possession thereof. Thence follow other provisions relating to the redemption of lands after the lease has been, given and the purchaser let into possession, and the rate of interest during such period which, clearly enough, do not have any bearing upon the question now before us, for the reason, first, that the notice to redeem was fatally defective in that it required redemption to be made within two years from the 7th day of May, 1883, instead of May 29, 1883, as the opinion of the Special Term well demonstrates; and, secondly, because the notice to the owner, as prescribed by section 943, had not been given, and hence the time had not arrived when the right to exact forty-two per cent was in the purchaser.

The order of the Special Term should be affirmed, but without costs.

Brady, P. J., and Daniels, J., concurred.

Order affirmed, without costs.