text:
    Jerry McCue, Resp't, v. The National Starch Manufacturing Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Master and servant—Negligence.
    Plaintiff, an ordinary day laborer, with no knowledge of machinery, while working for defendant, undertook to put a pin in a wheel where one had come out, and was injured. He testified that he tried to stop the machinery, but was unable to do so; that he had been told to fix the machinery when out of order, and had received no other instructions. Defendant’s testimony tended to show that he had been told to report anything wrong to the machinist. Held, that the court properly refused to charge that it was negligence for plaintiff to attempt to repair the machinery, and submitted the question to the jury.
    _ Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover for personal injuries.
    Plaintiff, who was a day laborer, and had no knowledge of machinery, was employed in defendant’s feed department, in which were cisterns containing machines for stirring the feed or gluten. These were connected by shafting and cog wheels with a shaft near the ceiling. A pin in one of the shafts having fallen out, and that machine having stopped, plaintiff attempted to stop the machinery, but failed, and thereupon climbed up on a frame near the wheel and attempted to put in a pin, when his hand was caught and injured. He testified that he had been told to fix the machinery when out of gear, and that no instructions were given him.
    On the other hand, defendant gave evidence tending to show that plaintiff had not been told to fix the machinery, but had been told to report anything wrong to the machinist
    The trial court charged in part as follows: “ This action rests upon this principle: This is a laborer, working by the day, ignorant of machinery, and the question is, did this company, the master, through its agents, tell him to fix the machinery when it became out of order, and did they fail to instruct him as to its dangers ? He says they did. • Now the whole action rests there. Did they put the duty upon a laborer, ignorant of mechanics, to repair machinery, and did they fail to tell him of the dangers of doing it? If you find that they did, this plaintiff is entitled to recover compensation at the hands of this employer. But if he was not told to repair such things as these when they became out of order; if he was told to go to the machinist’s office and report, and he then undertook of his own notion to put this pin in while the power was upon it, and was thus injured, he must bear the loss. This whole conflict is addressed right to that question of fact. You are to determine it. If you find that they put this duty upon him, being ignorant, without instructions as to the danger, and he was injured thereby, the company is liable so far. Is there negligence proved against the company? If not, there is no verdict for the plaintiff possible in the case. Now the plaintiff owed a duty. Where an employe is injured by the neglect of the master, you must find in addition that he did nothing that be should not have done, on the occasion in question, which contributed to the injury. His duty was to furnish that care, prudence, caution and anticipation of danger, in the circumstances in which he was placed, that you would expect from a man of ordinary prudence. If he failed in that, he cannot recover, no matter how negligent the company may have been. But if he furnished the prudence of an ordinarily prudent man on the occasion and the master was negligent, he is entitled to recover compensation for the injury,” and refused to charge, as matter of law, that it was negligence for plaintiff to attempt to repair the machinery.

      M T. Payne {II. A. Monfort, of counsel), for app’lt;

      B. W. Downing, for resp’t
   Pratt, J.

The judge’s charge correctly stated the rules of law upon which the case depends.

The request of defendants that the jury be charged that it was negligence for plaintiff to attempt to repair the machinery was properly denied.

Upon that question evidence had been given, and it was properly left to the jury to pass upon its weight.

The testimony was in conflict upon many points, but the questians were for the jury, and we cannot interfere with their determination.

Judgment affirmed, with costs.

D Tor ah, J., concurs; Barhard, P. J., not sitting.


source: Caselaw Access Project

author: Dtkmah, J.

license: Public Domain

text:
    In the Matter of the Claim of Mary L. Van Slooten, App'lt, v. Charles H. Wheeler, Ex'r, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Decedent’s estates—Mortgage.
    Claimant held a mortgage against real estate of the decedent which he sold. She satisfied the mortgage a short time b 'fore the sale, and after-wards was known to have a check for the amount thereof, which she did not produce, but claimed to have given to the executor, who denied having received it. There was no proof of payment either of the mortgage or check. Held, that as the claim was for the amount of the mortgage, it was not necessary to produce the check, and that the claim was sufficiently proved.
    2. Same—Claim not defeated by gift in will.
    The claim was for $20,000. It appeared that by decedent’s first will he gave her $15,000 and that by a second will, drawn a few days before the satisfaction of the mortgage, he increased the legacy to $30,000. Held, that there being no expressed intention to pay the claim by such increase and the amounts being different, there was nothing to show that the change of amount was intended to have that effect.
    Appeal from order denying motion to set aside a referee’s report and for a new trial.
    • Claim for $20,000 against the estate of a decedent.

      Merritt E. Haviland (Martin J. Keogh, of counsel), for app’lt;

      Hubbard & Rushmore {Geo. G. Reynolds, of counsel), for resp’t
   Dtkmah, J.

After the death of Harry E. Dodge, the plaintiff,, whose name was then Mary L. Miner, presented a claim to the defendant, as executor of Mr. Dodge, for $20,000 with interest thereon from May 15, 1886, of which the following is a copy:

Harry E. Dodge, deceased, on or about the year 1886, was the owner of the premises, No. 278 Henry street, in the city of Brooklyn, upon which said premises there was a mortgage of $20,000 owned by and belonging to me, and in or about the month of May, 1886, said Harry E. Dodge, deceased, sold said premises, and at his request I executed a satisfaction piece of the said mortgage with the understanding and agreement that said Dodge would, pay me the amount of the said mortgage upon receiving the consideration price of said premises from the purchaser thereof, whereupon thereafter he gave me a check for the face of said mortgage, to wit: the sum of $20,000, which said sum has not been paid to me, and against which there are no offsets or counterclaims of any name or nature whatsoever.

That claim was rejected and referred to a referee, who reported against the plaintiff; from the judgment entered upon that report, the defendant appealed to the general term of this court, and we decided in favor of the validity of the claim, and reversed the judgment.

The case has now been tried before another referee, who disregarded the direction of this court, and decided against the plaintiff, although no new testimony was introduced on the part of the defendant

The plaintiff has now appealed from that judgment also, and we are required to re-examine the case.

There is no defense to this action, and never has been any; the whole reliance of the defendant being upon the inability of the plaintiff to prove her claim.

The following facts are either undisputed or abundantly proven: ■On the 11th of March, 1882; Harry E. Dodge executed and delivered a bond and mortgage to the plaintiff for $20,000. She held them until April 21, 1886, when she procured the mortgage to be recorded, and on the 22d of April, 1886, she executed a satisfaction piece and satisfied the mortgage of record. On the 1st day ■of May, 1886, Mr. Dodge sold and conveyed the premises to Louisa S. Eeeve. After the 1st day of May, 1886, the' plaintiff held the check of Mr. Dodge for $20,000, drawn by him to her order upon the firm of Clark, Dodge & Co., dated between the 1st and 13th of May, 1886. Upon these facts, and some other undisputed facts which surround them, which never can be changed, the validity of the plaintiff’s claim is susceptible of absolute demonstration, as we will proceed to show.

It is the claim of the defendant that the acknowledgment of "the payment of the mortgage contained in the satisfaction piece has not been explained, and is, therefore, evidence of the payment thereof. Let us see.

Mary Magdalena Durvee saw the bond and mortgage in the possession of the plaintiff two or three years, and at her request took them to David E. Manning, a lawyer, and delivered them to him. The referee sustained an objection to her stating the instructions she gave him, which was erroneous, but immaterial.

Manning testified that Mrs. Duryea brought the bond and mortgage to his office, and requested him to place the mortgage on record, which he did. That he prepared a satisfaction piece of the mortgage at the plaintiff’s request, and placed that on file also; that after the mortgage came from the register’s office, he returned the bond and mortgage to the plaintiff, as he remembers, and that he never saw Mr. Dodge. The plaintiff says he did not so return them.

This testimony shows that the mortgage was not paid at the time of the execution and filing of the satisfaction piece, and that the mortgage was satisfied without payment, for it cannot be assumed that it had been paid previously.

The bond and mortgage were not found among the papers of Mr. Dodge, and that raises a fair presumption that they were never delivered to him, for the mortgage was recorded and satisfied only six weeks previous to his death, and would not probably have become mislaid in that short time if they had been delivered to him. If they were never delivered to him, the presumption is they were never paid, for if he had paid them he would have demanded their delivery to him.

Again, Mr. Dodge sustained an attack of paralysis on the 14th day of April, 1886. Another on the 7th day of May following, and the third, which proved fatal, on the 3d day of June. It may safely be assumed that the mortgage was not paid before it was recorded, which was just two weeks after the first attack of paralysis, for if it had been paid there would have been no object in placing it on record.

The evidence iridicates that Mr. Dodge" was confined to his house after the first attack.

If he paid the mortgage on the 22d, when it was satisfied, or near that time, he doubtless did so with a check, and that check, or his check book, or his bank book, or his bank account, would either, or all of them, show such payment, and all these sources of proof are under the control of the defendant.

Or, if he paid the mortgage in money, it was brought to him by some person, and so large a sum would be drawn especially for that purpose, and it would be charged to him in his bank account. But there is no claim that his bank account, or his account with his firm, was depleted to the amount of $20,000, or any other sum, about the time when it is claimed this payment might have been made.

Yet not one word of proof was given upon these subjects, and the silence is exceedingly significant.

It is always legitimate to draw strong inferences against a party who fails to furnish material evidence when it is in his power so to do.

Heither were the papers in the possession of the plaintiff They constituted the evidence of her claim, and their possession was all important to her. After his death she knew her claim was against the estate, and it was to her interest to preserve them.

It cannot be presumed that she would destroy or withhold them against her own interest, as she would be obliged to prove them to establish her claim. These facts show that Mr. Manning may well have been mistaken in his belief that he returned the papers to the plaintiff Beyond all this, however, after the mortgage was satisfied and Mr. Dodge had sold his house, and between the first and thirteenth day of May, 1886, Dodge gave the plaintiff his check on the firm of which he was a member, of $20,000, and the presumption of law is that the check was given for a debt due from him to her, and as no other indebtedness is shown or claimed, and as the check was for the amount of the mortgage, the presumption is conclusive that the check was given for the mortgage debt

The burden of explanation was cast upon the defendant but he attempted none, although he has access to all the papers of the testator under his control.

These facts and circumstances prove conclusively that the mortgage was not paid when it was satisfied, and that the check was given for its payment But it was said the check is not produced and there was no proof of its loss.

The easy answer is that neither was necessary. The claim of the plaintiff is not founded upon the check. That was only material as evidence that the mortgage was not paid. The claim is based on the debt evidenced by the mortgage, and the original indebtedness never has been denied or questioned. The only de- . fense is payment. But why was not the check produced ? The plaintiff once had it, and'it was a piece of evidence of paramount importance, it constituted convincing proof that the mortgage had not been paid. If she had it now she would produce it. It was against her interest to destroy it, and if she had lost it, she could easily say so, and that would settle the question.

She does not produce it, and as we have seen, its loss or destruction cannot be assumed, it has not been presented for payment, and has never been paid.

She would naturally preserve it with great care and refuse to surrender it except to some one, or in some way that she supposed would procure her the money. That presumption is natural.

She says that she delivered it to the defendant soon after the death of Mr. Dodge, with the statement that Mr. Dodge had told her, if anything happened to him, to give the check to the defendant, and let him collect it for her. If she did not collect the check, to let the defendant collect it for her. This is denied by the defendant.

Her conduct accords with her testimony, for if Mr. Dodge told her the defendant would collect the check for her she would naturally deliver it to him for that purpose. Her testimony naturally accounts for the absence of the check and shows the voluntary surrender of it to a person whom she believed would collect it for her, and we cannot account for its absence upon any other consistent theory.

Such is, in our view, the most reasonable conclusion respecting the failure to produce the check, but, as we have already stated, such failure is immaterial to the determination of the case. With the check in the possession of the plaintiff at the death of Mr. Dodge, this analysis of the undisputed facts, in the light of surrounding circumstances, establishes the validity of the plaintiff’s claim. The validity of the original indebtedness, for which the bond and mortgage were given, was not disputed.

The defendant denies that the plaintiff delivered to him the check, and denies some other portions of her testimony, and one or two of his witnesses do the same, but no witness denies the testimony of either of the witnesses for the plaintiff, and we have considered the case and reached our conclusion entirely independent of the testimony of the plaintiff.

Our examination has proceeded thus far independently of the paroi evidence, but a few extracts from the testimony on the part of the plaintiff will show how well it harmonizes with all the facts and circumstances.

Mrs. Laura Brewster Halstead, a witness called in behalf of the plaintiff, testified as follows, among other things :

Q. State whether or not you ever saw a check at 52 Sidney place at any time shortly prior to Mr. Dodge’s death? A. Yes, sir; I did.

Q. About how long prior to Mr. Dodge’s death was this? A. I don’t exactly know; only a few weeks.

Q. Do you know the date of his death ? A. Some time in the early part of June. * * *

Q. Had you ever seen this check before this occasion that you have spoken of ? A. Only once.

Q. You only saw it once ? A. Yes, sir.

Q. Or once before ? A. Only saw it this once.

Q. Where was it ? A. On the bureau.

Q. In whose name was it? A. Mrs. Yan Slooten’s room. * *

Q. Will you state to whom it was addressed, if to anybody ?

A. Pay to Mary L. Miner the sum of $20,000. Signed, Harry E. Dodge.

Q. Will you please give the date of it? A. Some time in May, the first or second week. I don’t remember the date exactly.

Q. Will you state to whom it was addressed, if to anybody ?

A Do you mean to whom the envelope was addressed?

Q. No, to whom the check was addressed. Was it a blank check ? What was on the face of it ? A. It was Clark, Dodge <& Company on the top, and made payable to Mary L. Miner.

Q. Had you ever seen Mr. Dodge write? A. Yes, sir.

Q. Were you familiar with his signature ? A. Yes, sir.

Q. You knew it? A. Yes, sir.

Miss Sadie D. Dye, a witness for the plaintiff, testified as follows, among other things:

Q. Did you hear any conversation between Mr. Wheeler and Mrs. Yan Slooten on any question that day? A. Not exactly a conversation, but I heard some words pass between them.

Q. What were those words, as you recollect then, Miss Dye ?

A. I heard Mrs. Miner at the time say that those were the papers that she had in her hand that Mr. Dodge told her to give to him, and then that was all I heard.

David F. Manning, a lawyer, whose name we have already mentioned, testified among other things, as follows:

After stating that he received the bond and mortgage from Mrs. Duryee, and that she requested him to place it on record, and that he did so, and he prepared the satisfaction piece of the mortgage at the request of the plaintiff, he testified as follows:

Q. And what did you do with the satisfaction piece? A. Placed that on file also.

Q. The satisfaction which you placed on file was of the mortgage which you had received from Mrs. Duryee ? A. Yes, sir.

Q. Tell me whether or not that is a copy of the mortgage, to the best of your recollection? (Paper shown witness.) A. I think it was the same mortgage; I only recollect it by the amount, and I think the property was the Henry street property.

Q. What did you do with the bond and mortgage after the mortgage came back from the register’s office? A. I returned the papers to Mrs. Yan Slooten, as I remember, after the mortgage came back.

Q. Between the date of this satisfaction piece and the date of Mr. Dodge’s death, on the 3d day of June, 1886, did you see what purported to be the $20,000 check in the possession of the claimant, Mrs. Yan Slooten ? A. I saw a check, the exact amount I could not be positive about, but I think it was for $20,000 : it was for a large sum of money, and I think that was the amount, in Mrs. Van Slooten’s possession.

Q. Will you please state whether or not the check you saw was on a blank similar to the one I now show you? A. I cannot remember that the check was; I think it was the same color as this check, but it seems to me the check was larger, though I would not be positive; I remember the name of Clark, Dodge & Company distinctly.

Q. Will you state by whom that check purported to be signed ?

A. It purported to have been signed by Mr. Dodge.

Q. Harry E. Dodge ? A. Yes, sir. * * *

Q. On your direct examination, at the former hearing, you testified with regard to seeing a check in Mrs. Van Slooten’s possession ; you did not state to whose order that check appeared to be drawn; if you know, please state. A. Drawn to the order of Mary L. Miner.

The respondent bases an argument against the validity of the plaintiff’s claim upon her delay in its presentation, and her inconsistent conduct, and while those elements are always suspicious, yet in this case, when we start out with the original indebtedness admitted, and no answer to it attempted but payment, neither delay nor inconsistency can be allowed much force. Nothing but payment will meet the demand, and that plea is destroyed by the circumstantial evidence that clusters round the whole transaction.

We have made this lengthy and careful examination because it was due to the case in view of the aspect it has assumed.

A second referee has disregarded the decision of the general term, and the counsel for the defendant, with great apparent gravity and with much honeyed commendation of the report and the justice it had wrought out by relieving this estate from the payment of an honest claim, urged this court to reverse the rule that requires a trial court to obey the decision of the appellate tribunal upon a new trial, yield its opinion and follow the decision' of- the learned and able referee and refrain from interference with the judgment he has directed.

We find ourselves unable to yield to this argument or to modify our views, or to forbear from interference with this judgment, and so wre have stated fully the reasons which impose such inability.

It is intimated in the points of the respondent that the mortgage was paid by the increase of the legacy in the last will from $15,000 to $80,000, but the theory is inconsistent and destitute of support, and only requires the citation of a few facts to accomplish its overthrow.

The last will of the deceased was drawn by himself May 15, 1886, the day after his second attack of paralysis, but it was not executed at that time, as we shall presently see. That was six days before the mortgage was recorded and seven days before it was satisfied.

When the will was executed we are not informed, but it was executed and in the possession of the plaintiff on the third day of June, when Mr. Dodge died.

The defendant testified that the plaintiff handed him two checks the last of July, 1886, one for $10,000 and one for $5,000,drawn by Mr. Dodge upon Clark, Dodge & Company, payable to the order of the plaintiff and signed by the deceased. He does not give the date of either of these checks.

The defendant further testified that he looked at them and said to the plaintiff, “ May, these are two papers which Mr. Dodge spoke to me about at the time he stated to me that he had made me his sole executor, striking out Mr. Clark as co-executor. ‘I have drawn my will in my own handwriting. It has not yet been witnessed, but I have drawn two memorandum notes or checks showing that I desire to leave Mrs. Van Slooten, $30,000. The old will called for $15,000, the new will $30,000 as her legacy, and upon the completion of the new will, I shall destroy the old will.’

“ I said to May, you see that these two sums of $15,000 stated in these two papers, added to the sum of $15,000 in the original will, shows that Mr. Dodge has carried out that which he said to me he desired to do. They have no value.’’ And Mrs. Miner said to me; “ I understand that perfectly.”

So it comes to us from the lips of the testator himself that the increase of the legacy was a gift, and not the payment of a debt. Moreover the amount does not correspond with the mortgage debt, and if Mr. Dodge had designed it as a cancellation of that debt it must be assumed he would have said so instead of announcing an entirely different intention. Mr. Wheeler did not give the date of the conversation, but it harmonizes with the other facts to assume that it was on the day the new will was drawn, for the testator said he had drawn his will, but it had not been witnessed, and when it was completed he would destroy the old one, and we know from another witness that the testator threw the old one in the fire the same day. So it is plainly shown that the mortgage was not paid or designed to be paid by the increase of the legacy, and a legacy to a creditor is not to be deemed in satisfaction of a debt unless so intended by the testator. Clarke v. Bogardus, 12 Wend., 68; Sheldon v. Sheldon, 133 N. Y., 4; 44 St. Rep., 260. The judgment should be reversed and instead of ordering a new trial we have concluded to direct a judgment in favor of the plaintiff for the following reasons.

All the testimony on both sides is contained in the case, and the facts upon which we base our decision are undisputed, and cannot be changed in any material respect upon another trial.

The action has been twice tried, and the material testimony was substantially the same on both trials, and while the power to render an absolute judgment upon reversal should be exercised with great caution, yet as the power exists, and we see plainly that the defense cannot succeed, we deem this a proper case for the exertion of the authority. It only modifies the judgment, and our power of modification is unrestricted. Code, § 1317.

“ Where the appellate court can see that no possible state of proof, applicable to the issues in the case, will entitle the party to a recovery, it is not necessary or even proper that a new trial should be awarded.” Edmonston v. McLoud, 16 N. Y., 545. See, also, Brackett v. Griswold, 128 id., 648; 40 St. Rep., 81, and Arthur v. Griswold, 55 N. Y., 411; and Price v. Price, 33 Hun, 432.

The last case cited was an appeal from a judgment entered upon the report of a referee in favor of the defendant, and the general term held that upon the facts found by the referee, the plaintiff, and not the defendant, was entitled to judgment, and that the only error committed by the referee consisted in a misconstruction of the legal effect of the facts proved, and that the general term might direct a judgment to be entered in favor of the plaintiff, and need not order a new trial. Price v. Price, 33 Hun, 432; id., 76.

The judgment should be reversed, and judgment awarded for the plaintiff for the full amount of her claim, with interest and costs.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    Henry A. Coster et al., Resp'ts, v. Julia De Lancey Coster, Resp't, and Cornelia F. Coster, App'lt.

      (Supreme Court, General Term, Second Department, Filed

      December 12, 1892.)

    Partition—When sale will be decreed.
    In an action of partition of land owned by three parties, which consisted of two parcels, one of thirty-one acres, with buildings, and the other of eight acres, without buildings, it appeared that the parcels when separated would not sell to as good advantage as when sold together. Held, that in such case it was proper to decree a sale of the entire property, although one of the parties desired a parcel set oil to her to hold for an increase in value, especially where her interest is greater than the value of the smaller parcel, as in such case she can protect her interest by purchasing it at the sale.
    Appeal by defendant, Cornelia F. Coster, from judgment confirming the report of a referee in an action of partition. The following is the opinion of the referee so far as it relates to the question as to whether an actual partition or sale shall be had:
    L. H. Arnold, Jr., Referee.—This is a reference to inquire and report, among other things, whether the premises described in the complaint, or any part thereof, are so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners thereof, and if the referee shall reach the conclusion that the sale of the whole premises or any part thereof will be necessary, that he specify the same in his report, together with ■ the reasons which render the sale necessary; also to take the account of the rents and profits of the real estate described in the complaint received by the plaintiff from the 15th day of April, 1891, to the date of the report, and determine how the same should be divided, etc.
    In considering the question whether the premises shall be partitioned or sold, all the facts and circumstances of the case should be considered, including those relating to the condition of the parties, the location and nature of the property, the market for it as a whole or in separate parcels, and the practicability of making an equitable actual partition. Odell v. Odell, 19 W. Dig., 13.
    And if it shall appear, under all the circumstances, that an actual partition cannot equitably or properly be made, and that it is for the interest of all the parties to have a sale of the property in such manner as to aggregate the largest amount possible; or if it shall appear that the whole property taken together will be greatly diminished in value if separated into three parts in the hands of three different persons, according to their several rights or interest in the whole; in other words, if the aggregate value of the several parts when held by different individuals in severalty would be materially less than the whole value of the property if owned by one person, then a sale should be ordered. Odell v. Odell, supra; Clason v. Clason, 6 Paige, 541.
    The premises in question are situated in Westchester county. The larger parcel is located on Throggs neck, and the smaller one is about an eighth of a mile distant. The former parcel is well known in that section as the Coster place, and has been for many years occupied by members of the Coster family as a country residence. It consists of about thirty-one acres. The house is located near the center of the plot, and in close proximity thereto are the outbuildings. The main entrance is from the Heck road. The place is bounded on the north by the Eastern boulevard and Hew road, and on the west by the Heck road; on the east and south by lands belonging to other parties.
    The smaller parcel is irregular in form. It is unimproved, and is entirely bounded by land owned by other parties, excepting only about thirty-five feet fronting on a lane. The only entrance to this plot is through this narrow space.
    One of the plaintiffs, Henry A. Coster, and the defendants, Julia De Lancey Coster and Cornelia F. Coster, are each seized in fee of an undivided third of the premises in question, as tenants in common. The other plaintiff, Mary L. Coster, is the wife of Henry A. Coster, and has an inchoate right of dower in her husband’s undivided share of the premises. All the parties are of full age, and all unite in asking for a sale, except the defendant, Cornelia F. Coster, who asks for a partition.
    Cornelia F. Coster is very wealthy, but Julia De Lancey Coster is dependent upon the income of her share of the property to provide herself a home.
    A great deal of testimony was taken on the crucial question whether, if the premises were actually partitioned into three parts, the aggregate value of those parts would be considerably less than the value of the property held as a whole. It is not important to consider in detail the testimony of the experts who were examined by both sides on that question. It is sufficient to say that it appears by a strong preponderance of proof that the result of an actual partition would be that the aggregate value of the parts would be much less than the value of the premises held as a whole.
    The testimony of Mr. Seton, of Mr. Coster, and of Mr. Mapes, to that effect, is more reliable than the testimony of the defendant’s witnesses, because those gentlemen are better informed as to the value of real estate in the vicinity of the premises in question, and as to the market therefor.
    It clearly appears that while both parcels can be sold to advantage as a whole, no one part of each can be sold advantageously if a division is made.
    If divided into three parts, no one part would be large enough for farming purposes, and as there is no demand in that section for city lots or villa sites, it is clear that no part could be disposed of advantageously if laid out in that way. While there have been some sales of land cut up into city lots nearer the railroad, the evidence makes it very clear that an attempt to sell any part of the Coster place .in city lots at this time would be quite certain to be a failure. If the larger tract was divided, one part would necessarily contain the house and outbuildings, and a comparatively small area of land. The value of such a parcel would be depreciated, as it would be too small for a country place, and could not be used advantageously for any other purpose.
    In regard to the smaller parcel, the eight acre lot, the very limited means of access to that property makes it of comparatively little value unless owned by one person. As to both tracts', it seems clear that an actual partition cannot be made without great prejudice to the owners, and that a sale is in every way desirable.
    It is insisted on behalf of the defendant, Cornelia F. Coster, who asks that an actual partition be made, that one part shall be partitioned and set off to her; the residue to be sold, if desired by the other owners. The rule is, that if one part can be set off to satisfy the share of one of the parties without prejudice to the other owners, it may be done; but if it appears that it would be prejudicial to the other owners, it should not be done and a sale of the whole should be made. Haywood v. Judson, 4 Barb., 228.
    For the reasons already stated, it would clearly be prejudicial to the other owners if one part was set off to satisfy the share of Mrs. Coster, as the premises would sell more advantageously as a whole, and the value of any two parts, if sold.together, would be materially less than the corresponding portion of the selling price of the whole property.
    It was argued by the counsel for Mrs. Coster that as the value of the property has increased very much of late years, and will, doubtless, continue to increase by reason of the strong probability that that part of Westchester county will ultimately be annexed to the city of New York, and for other causes, those facts should be considered as strong and convincing reasons for making an actual partition, in order that the owners may have the advantage of the anticipated rise in value. To give to this argument the force which counsel asks, would require that the legal rules governing the disposition of the questions involved in this action should be disregarded.
    The right of Mr. Coster, the plaintiff, and of his sister, Julia De-Lancey Coster, to have the premises in question partitioned or sold at this time is absolute; and in determining whether they shall be sold or partitioned, we have to look at the facts and circumstances of the case as they now exist, not at what may happen in the future. The test is, as already stated, would the aggregate value of the several parts when held by the different parties in severalty be materially less now than the whole value if owned by one person.
    On this point the evidence admits of no doubt, and it is proper to consider in this connection that as Mrs. Coster is very wealthy she can protect herself by purchasing the property when it is sold, if she desires to do so. Clason v. Clason, supra; Walter v. Walter, 3 Abb. N. C., 17.
    If it is proper to consider the demand of Mrs. Coster that the premises shall be partitioned in order that she may hold her part in severalty to take advantage of the anticipated advance in value, it seems equally proper to consider the claim of Miss Coster, who is dependent upon the income of her part for her support, that the property shall be sold. The latter may with great force insist that it is of the utmost importance to her that the property shall be disposed of now to the best advantage, and that if she is compelled to accept a third part thereof, because it may increase in value in the future, she may be compelled to sell it at a great sacrifice before any demand for such small parcels of land shall arise.
    The report was confirmed at special term and the following opinion filed:
    Dyicma®, J.—It is frequently difficult to determine whether a sale or partition of land in action for that purpose will be most beneficial to the parties in interest, and also in this case there seems to be some uncertainty in relation to the question.
    The land consists of two parcels of unequal size and value, and there are three tenants in common. Two of the owners desire a sale; the other desires a partition, and the referee has reported in favor of a sale, and has assigned some very good reasons for his conclusion.
    It is quite apparent that an equal division into three parts cannot be made ; one parcel contains thirty-one acres of land and the mansion house and out-buildings. The other parcel contains about eight acres with no buildings, and the land itself is not so valuable as the land in the larger parcel.
    It is true that the parties, or at least two of them, are able to counterpose inequality to the division by compensation, but that is not a very satisfactory method of producing equality.
    It is entirely certain that no injustice can result from a sale because the property is valuable, and will find a ready sale at a large price.
    In view of all the circumstances, my conclusion is that the report of the referee should be confirmed, and a sale directed by the same referee as all the parties joined in a request for his appointment to make the sale, if one was ordered.

      Frederick Seymour, for app’lt;

      Billings <& Cardoza (Cales Morris, of counsel), for pl’ffs, resp’ts;

      Edgar J. Nathan, for de’ft, resp’t.
   Pratt, J.

The referee’s conclusions are sustained by the proof. If appellant is right in her views of the value of the eight acre lot, she can protect her rights by buying it upon the sale. As she is entitled to one-third the whole estate, and the eight acre lot is of far less value than one-third, so to do would not require any cash payment, and would be substantially the same as its being set aside to her, as she desires.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Edwin A. Witham, App'lt, v. Wm. Claiborne Thomas et al., Resp'ts. George H. Kendall, App'lt, v. James W. Monk and Wm. Claiborne Thomas, Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Malicious prosecution—Probable cause—Trespass.
    K. was the owner of premises adjoining property of which T.’s wife was in charge, and separated therefrom by a fence six feet high, which was down for ah rat 100 feet. His employe, W., cut down five trees on the adjoining land at this point. On being remonstrated with,K. apologized, and claimed it was a mistake, but subsequently other trees were cut, in reality, to give K. a better view. K. refusing to make any reparation, M., as attorney for the owner, brought suit for trespass, and had K. and W. arrested on a charge of wilful injury to property, but they were discharged. Held, that there was probable cause for the proceeding, and that malice not being shown, a nonsuit was proper.
    Appeals from judgments dismissing the complaints in both actions.
    Actions for malicious prosecution.
    Mrs. Athenais Yon Hoffmann owned a country seat on Grymes Hill, Staten Island, called “ Crow’s Nest,” and the plaintiff, Kendall, owned the adjoining place on the south. Between the two places, and dividing them, there was a close board fence seven feet high, running east and west from Howard avenue or the Serpentine Eoad on the west, to the Eichmond Eoad on the east.
    Mrs. Yon Hoffmann was absent in Europe, and had placed her niece, Mrs. Thomas, in the possession of Crow’s Nest.
    In December, 1890, Mrs. Thomas discovered that five trees had been cut upon Crow's Nest, and was informed by the plaintiff Witham, who was the workman of the plaintiff Kendall, that he had cut them by the direction of Kendall. She warned Witham not to cut any more, and on December 12, wrote Kendall a note complaining of the cutting. To this note Kendall replied, apologizing for the acts of his man. On December 15th Mix Thomas wrote Kendall another note accepting his apology, and on December 15th, Kendall wrote Mrs. Thomas another note reiterating his apologies.
    On December 18th or 19th Kendall called upon Mrs. Thomas and stated to her “that he was the guilty one—that he cut down the five trees, or had his man cut them for him, to gain a view of the Brooklyn Bridge; and he also said that he. required four more to get that view, and he asked my permission, and I objected. His answer was, ‘ that settles it. ’ ”
    Mrs. Thomas was subsequently informed that four more trees had been out, and on Christmas day walked over to the fence line and there found four more trees down, and nine in all. Some days later she found three more down, making twelve in all. Subsequently she informed Mr. Von Hoffmann, the husband of Mrs. Von Hoffmann, of the facts and of the correspondence between herself and Kendall. Mr. Von Hoffmann advised with the defendant Monk, who had been his counsel for years, as to the rights and remedies of Mrs. Von Hoffmann in the premises, communicating to him the facts above stated.
    Mr. Monk advised him that Kendall was liable in a civil action for damages, and that he and his man, the plaintiff, Witham, were also liable to indictment as for a misdemeanor, and to fine and imprisonment upon conviction. Mr. Monk also advised Mr. Von Hoffman that the criminal prosecution would have to be conducted by the district attorney.
    Mr. Von Hoffmann, being on the eve of his departure for Europe, instructed Mr. Monk to institute any and all actions necessary to restrain a continuance of the acts complained of, and to recover the damages suffered, and also instructed him to lay the matter before the district attorney for criminal prosecution.
    Mr. Monk suggested to Mr. Von Hoffmann that perhaps he had better call upon Kendall and see what he had to say about the matter, and that perhaps all legal proceedings could be avoided. To this Mr. Von Hoffmann assented, and Mr. Monk called upon Kendall, and had an interview which was of the most friendly character, and without a shadow of suspicion of any bad faith upon the part of Kendall. Mr. Monk wrote Kendall a letter offering to settle the matter for $750, to which Kendall replied refusing the offer.
    In view of Kendall’s letter Mr. Monk brought suit against Kendall for the. damages suffered by his client, and laid the matter before the district attorney for his action, with view to prevent a continuance of these trespasses. He stated the whole case to the district attorney, including the correspondence between Mrs. Thomas and Kendall, the two letters between Kendall and himself and the information conveyed to him by the several witnesses.
    The district attorney advised Mr. Monk that the offense was not a misdemeanor, but a felony, and came under the provisions of § 654 of the Penal Code, and prepared a complaint against Kendall and Witham, and directed Mr. Monk to have the same sworn to before Justice Acker by some one acquainted with the facts, and when they were arrested he would attend and prosecute.
    Kendall and Witham were arrested and taken before Justice Acker, who paroled them pending examination, which was set down for March 21, on which day, after the examination of several witnesses, it was adjourned to April 4, and again to April 6, on which day he discharged Kendall and Witham. Upon the first day the district attorney appeared for the prosecution, hut failed to appear on the adjourned day and the case proceeded without him.
    The complaint was for cutting the five trees which had been discovered at the time of the correspondence between Mrs. Thomas and Kendall.
    Upon the conclusion of the testimony Justice Acker reserved his decision until April 6, in order that he might read over the testimony; and on that day, discharged the defendants. These actions were, thereupon, brought for malicious prosecution. At the close of the evidence the court directed a verdict for defendants in each case, expressing himself as follows;
    The Court: Four things must concur to make out this action. An omission to prove anyone of the four would be fatal: 1, there must be an arrest; 2, there must be a discharge; 8, there must be proof of actual malice; and, 4, there must be a lack of probable cause.
    The freedom of law, criminally and civilly, is carefully guarded by these four propositions. Two of them are proven here beyond question. The. plaintiff was arrested, and he was discharged. You are to prove malice; not presumptive, but actual malice. And you may prove the most absolute malice. You may prove to make a complaint to blast a man’s reputation because you hate him. You may make it just as strong as you please. It is only a step in the action, because the law permits the most malignant man to present to the court a case if he have a probable cause.
    Now, you have got down to the last of the four, and to me it is a case that rather astonishes me that the justice should discharge. Here is a lady with a piece of property guarded by a fence; perhaps it may be down, and an adjoining owner directs his •workman to cut a vista through there, fifty feet wide to the extent of twelve or fifteen trees, more or less. Now you may say he made a mistake; you may say anything. But that the owner had the right to lay that case before a judge or jury is so plain that nobody can doubt it She says, “ My trees have been cut.” They admit it. “ They have been cut over my line. There was a line fence there.” They say, “Yes; that is so, but I owned some land somewhere about there, around the corner.”
    I do not say anything as to where the merits are; that may be true; but this lady that owns the land had the right to present her case before this justice, and the justice decided against her. And are the lawyers and the prosecutor, the district attorney, the several attorneys, all to be made liable when a jury fails to agree with them, or a magistrate fails to agree with them, or a grand jury refuses to find a bill that they present ? No. This case is not made out, and a verdict is ordered for the defendant upon the evidence as it stands.

      Jas. M. Runt, for app’lts ;

      Geo. J. Greenfield and Jas. W. Monk, for resp’ts.
   Pratt, J.

We are not able to find any evidence from which the jury could properly say that the prosecution before the justice of the peace was malicious, or that it was without probable cause. On the contrary, we are disposed to share the surprise expressed by the circuit judge, that the accused- persons were not held for trial.

Where a fence six feet high is standing along a boundary line, the fact that gaps existed in some places would scarcely explain how a careful man could so far trespass upon his neighbor’s land as was done in this case. It is not surprising that the criminal charge was made, for there was, apparently, a reasonable ground to sustain it.

Malice not being shown, and probable cause existing, the non-suit was rightly granted.

Judgments affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Fitzsimons, J. Ehrlich, Oh. J. -Newburger, J.

text:
    Elmira Fulton, Resp't, v. The Metropolitan Life Insurance Co., App'lt.

      (City Court of New York,

      General Term,

      Filed December 22, 1892.)

    1. Insurance (life)—Premiums paid on void policy — Knowledge of AGENT.
    Plaintiff, on the solicitation of defendant’s agent, insured her father’s life for her benefit, signing his name to the application on the representation of the agent that she could do so. After a large number of payments had been made, defendant claimed that the policy was void because the application was not signed by the insured. Held, that the knowledge of the agent was to be imputed to defendant, and that, with knowledge of such fact, it had no right to receive the money and has no right to retain it.

      2. Same—Money had and received.
    An action for money had and received is the proper remedy in such a case.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      Arnoux, Hitch & Woodford, for app’lt;

      Albert I. Sire, for resp’t.
   Fitzsimons, J.

The defendant is a life insurance company; i| employs agents who canvass for insurances for it.

The one whose life is proposed for insurance must sign the application for insurance, otherwise the company is not liable upon the policy issued in response to such application.

The agent of the defendant is required to personally see and examine the proposed insured, and satisfy himself of his identity.

About March, 1888, the plaintiff, desiring to have the life of her father, Jacob 0. Stone, insured for her own benefit, made application for such insurance to defendant through one Walsh, who was its agent, and who called at plaintiff’s residence for the purpose of obtaining insurers in defendant’s company.

Her father, at that time, resided in Ohio. She signed his name to the application blank in the presence of defendant’s said agent, who then signed his name to it, certifying that he had seen and examined Jacob 0. Stone, and recommended that he be accepted by defendant. Subsequently two policies were issued by defendant.

The premiums on such policies were payable weekly, $.60 each week. This snm was collected in that way by defendant’s collector until plaintiff had paid $106.60. She then called upon defendant’s secretary, Mr. Gaston, who refused to admit that said policies were valid against defendant; but according to plaintiff’s story he said that they were void.

Plaintiff then demanded the sum of money paid by her to defendant, which was refused.

Thus this action was commenced for the recovery of the same. The complaint is for money had and received by defendant for plaintiff. Judgment was ordered for plaintiff.

The agent of the defendant, Yralsh, had authority to receive applications for insurance; that, apparently, was the purpose of his employment by defendant.

He called everywhere and anywhere where he supposed that the object of his employment would be gratified. The insured was required to sign in his presence and he was privileged even to certify to the fitness of the insured.

All knowledge and information communicated to him and which was within the province of his authority, was communicated to defendant itself.

Therefore, the defendant knew at that time, for as above shown its authorized agent knew, that Jacob C. Stone never signed the application for insurance but that the same was signed by plaintiff, and that the policies of insurance issued in pursuance and as a sequence of such application were void as against defendant.

Hnless the signature of insured was waived, which was not done, Walsh while acting within the scope of his authority knew that Stone did not sign the application, but that the same was signed by plaintiff, she signing her father’s name and, therefore, defendant is deemed, to have known that fact also, although never communicated to it. Cox v. Pearce, 112 N. Y., 640; 21 St. Rep., 808.

The policies being void ab initia as against defendant, and known to be so by it, it suffered no risk, it should not have received but should have refused the money paid by plaintiff. And it would be wrong and unjust to permit it to retain the same.

Although the statement made by Walsh to plaintiff, that she had the right to sign her father’s name to the application, was unauthorized and not binding upon defendant, yet such statement was certainly relied upon by her ; she paid defendant the money received by it reiving upon such representation, and it would not be .just or equitable to permit it to profit by its agent’s wrong doing.

The form of this action is proper the case falls within the familiar doctrine that money in the hands of one person equitably due another may be recovered in such an action.

The action for money had and received to the use of another is the form in which courts of common law enforce the equitable jurisdiction.

Where one person has money in his possession which he cannot conscientiously retain from another, the latter may recover in this form of action. Roberts v. Ely, 113 N. Y., 131; 22 St. Rep., 185.

The defendant, by claiming right and title to plaintiff’s money, while refusing to her the benefit flowing from the policies issued to her because of the irregularity mentioned, is doing an unconscionable thing which should not receive the sanction of a court of justice.

I do not think it is the policy or purpose of the law to aid in the consummation of such wrong.

The trial justice, upon the testimony submitted, would have been justified in directing a verdict for the plaintiff upon his. own motion.

Finding no error, the judgment is affirmed, with costs.

Ehrlich, Oh. J.

I concur in result.

-Newburger, J.

I concur in the result, see opinion of Judge Bischoff in Fulton v. Metropolitan Life Insurance, 47 St. Rep., 111.


author: Hardin, P. J. Merwin, J.

text:
    Frank B. Reynolds et al., App'lts, v. James F. Everett et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Injunction—Enticement on employes.
    A permanent injunction will not be granted against a confederation of persons whose object is to entice away workmen from their employer’s employ, nor can the employer maintain the action on the equity side of the court to recover such damages as he has sustained.
    Appeal from a judgment entered in Broome county on the-16th day of March, 1892, upon a decision made at special term, dismissing plaintiffs’ complaint, without costs, after a trial in said special term on the 24th of June, 1891.

      Edmund O' Connor, Alex. Gumming and A. D. Wales, for app’lts;

      George B. Curtiss, Roberts & O'Brien and Tracy Becker, for resp’ts.
   Hardin, P. J.

(1) Plaintiffs brought this suit in August, 1890. They were then engaged in the business of manufacturing and selling cigars in the city of Binghamton, and there were other manufacturers engaged in a similar business, and who with the plaintiffs employ some 3,000 persons to do the mechanical work of making cigars. The plaintiffs employ about 400 persons, male and female, in the prosecution of their business, and the complaint alleges that in order to have the business profitably conducted it must be “run continuously, and the stoppage of the business of manufacturing arbitrarily, without regard to the interests of the business, inevitably results in a large loss to the business.”

It is also alleged that June 17th, of that year, “ almost all of the said employes in said manufactories, to the number of several thousand, and among them the employes in plaintiffs’ said manufactory, to the number of two hundred (200) struck, as it is called,, that is, discontinued working in said manufactories and refused to work for the plaintiffs and for the proprietors of said other manufactories, unless they were paid an increased price for their work in accordance with the demand, which the plaintiffs and said proprietors of said manufactories refused to give, as they could not reasonably afford, under existing business conditions, to grant said increased price demanded; and that since said June 17 th, said striking employes have, to a great extent, continued in their refusal to work for plaintiffs and said other proprietors.” It is alleged that, by reason thereof, the operation of plaintiffs’ manufactory was practically suspended, and that the plaintiffs “ began to engage and employ other and new employes, * * * and that as soon as plaintiffs began to obtain said new employes, and even for some time before, the defendants illegally and wrongfully conspiring, conniving and contriving and confederating together with themselves and with other persons whose names are unknown to plaintiffs, to prevent the plaintiffs and said other manufacturers from carrying on their said business; determined to execute said determination by the following modes and devices : That said defendants, with others whose names are unknown to plaintiffs, caused large numbers of striking employes and others to assemble about the entrance to the plaintiffs’ place of business at the times when plaintiffs’ new employes came to and left said place of business in going to and from their work and to their respective places of abode. That in pursuance of said conspiracy and confederation said crowds interfered with new employes by intimidating them by their numbers, by making threatening remarks to them if they did not leave plaintiffs’ employ, by appealing to them to leave plaintiffs’ employ, by hiring them and trying to hire them to leave plaintiffs’ employ, and by applying scurrilous and opprobrious epithets to said new employes when they refused to leave their new employment, and in pursuance of said illegal conspiracy the defendants, with others whose names are unknown to plaintiffs, caused a disciplined force of said striking employes and others to guard and watch plaintiffs, and all -other of said manufactories in Binghamton for the purpose of obtaining the names and places of abode of said new employes, so that if unsuccessful in seducing plaintiffs’ new employes from their employment on the way to and from their business, they could still carry out their said illegal purpose at the places of abode of said new employes and elsewhere whenever and wherever they could get the opportunity, and also for the purpose of intimidating them as aforesaid.”

It is further alleged in the complaint, viz.: “ That-in pursuance of said illegal conspiracy they enticed away many of the plaintiffs’ said new employes from their employment,and prevented many other persons from taking said employment * * * and that all of said acts and devices, with many others of a similar purpose, were part of said wrongful and unlawful conspiracy, and of a scheme to prevent the carrying on of the plaintiffs’^ business and the business of said other manufacturers, by making it so -odious and dangerous or unpleasant for anyone assisting them that the plaintiffs and all others of said manufacturers should be absolutely prevented from conducting their said business, except upon terms dictated by said striking employes. That said defendants * * * also continually interfere with said new employes at their homes and boarding places, and by every device described, by persuasion, enticements and threats, endeavor to entice said new employes away from their employment, and defendants, and said unknown persons, threaten to continue said conduct until they have ruined the plaintiffs and all of said manufacturers, ■or force them to comply with the demands of said strikers, which plaintiffs and said othei manufacturers cannot afford to do.” The complaint alleges that by reason of said “ wrongful and illegal ■conspiracy, the business of the plaintiffs and of all others of said manufacturers have been for several weeks and still is practically suspended, * * * by all of which the business of the plaint iffsis greatly and permanently injured, both for the present and the future. That the continuance of said illegal acts will work .an irreparable injury to plaintiffs and all of said manufacturers, which injury is incapable of estimate in a legal action for damages as the damages resulting from said injury will continue for a series of years.” It is also alleged that most of the •defendants are irresponsible. It is alleged that this action is brought “ for the benefit of the plaintiffs and all other manufacturers of Binghamton similarly situated who see fit to come in .and contribute to the expense thereof."

The prayer of the complaint contains the following language: “Plaintiffs ask judgment that the defendants and their agents, ■servants, attorneys, counselors, and all persons acting with them, be perpetually enjoined and restrained from doing any of said illegal acts, and for a temporary injunction, pending this action, restraining said acts, and each of them, and for such other judgment and relief as maybe just.” Several answers were interposed ■by the defendants denying most of the allegations of the complaint, and alleging that the plaintiffs and other manufacturers before the 1st of June, 1890, “illegally and wrongfully conspiring, conniving and confederating together, with themselves, and with divers other persons, whose names are to these defendants unknown, to oppress and injure these defendants, and others like "them engaged in employment as cigar makers, and to depreciate the market value of their labor, and to prevent them from lawfully organizing, and from assembling in a peaceable and orderly manner, and from co-operating with other persons employed in the calling, trade or handicraft of cigar making for the purpose of bettering their condition, or of obtaining an advance in the rate of wages or compensation, or maintaining such rates theretofore established as the market value thereof, and also from demanding an increase of wages, and from assembling, co-operating and using all lawful means to induce employers to pay such wages to all persons employed by such employers; * * * determined and agreed to carry out and render effectual said illegal and wrongful ■conspiracy federation by means of” the acts and methods more particularly named; that they would not pay the employees “ any more wages, or any greater rate of wages, for the same kind and class of work done than the rate and amount so definitely and arbitrarily agreed and fixed upon as aforesaid, and that the plaintiffs and their said co-conspirators and confederates would not employ the defendants, or any other cigar makers, except at and for a rate of wages arbitrarily and definitely fixed and agreed upon by the plaintiffs and their said co-conspirators and confederates.” And further allegations were made in the answers alleging confederation and conspiracy of the plaintiffs and other manufacturers. The answer also alleged “ That the plaintiffs have an adequate remedy at law to recover damages for any of the matters and things alleged against the defendants, or any of them, in the complaint in this action, to recover which said damages the identical plaintiffs, before the commencement of this action, had began an action at law in this court against these identical defendants, which action is still pending.”

In the prayer in the answer the defendants ask: “That said plaintiffs and each and every of their co-conspirators and confederates, and each of their attorneys, agents and servants, be forever enjoined and restrained from anyway continuing or carrying-nut or doing any of the unlawful and wrongful acts and things in furtherance and pursuance of their cpmbination, confederation and conspiracy set forth in the fourth count of this answer.” Upon the pleadings and affidavits tending to support the allegations thereof a preliminary injunction was granted. An application was made to dissolve the injunction, and upon hearing the parties the judge who granted the same refused to dissolve the injunction, but modified the injunction by an order made on the 9th of September, 1890. The issues between the parties were brought to trial on the 24th of June, 1891, at special term, and several matters of fact were found by the special term, and among them that the employes “came together and organized, and they appointed a committee of thirty, which was called the strike committee.” And the special term also found : “ That this strike committee had charge of the general management of the strike, and that under its direction each factory was picketed ; that is, men and women were deputed to watch each factory as the employes came to and went from their work, and the said employes were accosted by these pickets, and by the defendants, and were urged and entreated to leave the plaintiffs’ employment, in order that the plaintiffs might not be able to continue their business, and thereby the purposes of the strike rendered effectual.” it was also found: “That by such persuasion and entreaty and inducements, many of the plaintiffs’ employes were induced to leave the plaintiffs’ employment; including some who had remained originally without entering upon the strike, and some of the new employes who were working for the plaintiffs under contract for a fixed period of time; and by concession plaintiffs’ business was sufficiently damaged to authorize an injunction.”

It was also found “that the defendants who were not among the striking employes, were connected with the publication of the Binghamton Leader, a newspaper published daily in the city of Binghamton.” It was also found that “ Both in the local columns and in the editorial columns in the said paper, appeared matter which was in approval and encouragement, both of the purpose of the strike and the methods used, of both of which the said defendants had knowledge.” It was also found “ That the purpose of the strike was to obtain an advance in wages; that such purpose was sought to be accomplished by persuading and inducing, as before found, those working for the plaintiffs to leave their employment, and those engaged by the plaintiffs to work from entering into said employment, with the intention of making such combination or strike so extensive as to include all laborers who were working, or might work for the plaintiffs’ factory, and thereby force the plaintiffs, in order to carry on their business, to pay the advanced wages demanded; ” also “ By concession that the aforesaid acts, if illegal, authorize an injunction herein.” The special term directed a judgment for the defendants, which was entered in accordance with the findings dismissing the plaintiffs’ complaint. Several special requests to find were made, and in response to the requests, among other things, the special term found “ That said persuasions and inducements were used and made in pursuance of a general plan between the strikers that they would accomplish their purpose by reason of such persuasions and inducements.” Also, “ That by reason of said persuasions and inducements certain of the employes of the plaintiffs’ factory were induced to strike and leave the plaintiffs’ employment, and certain other persons were induced not to enter the employment of the plaintiffs.” It also found that some of the employes who did not originally strike, but who were in the employ of the plaintiffs at the time of the strike, were induced by the inducements and persuasions hereinbefore set out, to leave the employ of the plaintiffs, and also some of the employes who were thereafter employed to take the places of the men who went upon said strike were induced by the same persuasions and inducements to leave the plaintiffs, and also some persons were induced by said persuasions and inducements not to enter the employ of the plaintiffs.”

It refused to find that the defendants “ were acting in concert and combination with said strike committee, in pursuance of a common design to prevent the plaintiffs and said other manufacturers from carrying on their said business by enticing away all of their employes and preventing them from getting other •employes until they acceded to the demands of said strikers for an increase of wages,” except as it had found upon that subject in the formal findings. In response to one of the requests, the special term found as follows: “That it was conceded upon the trial, and such was the fact, that by the acts of defendants, and those acting with them as hereinbefore stated, the plaintiffs’ business was damaged to some considerable extent; and sufficient to give a court of equity jurisdiction to grant an injunction provided said acts were illegal.”

The special term refused to find that the acts of defendants in combining to prevent the plaintiffs from carrying on their business as described in the findings of fact were illegal” It also refused to find that “ plaintiffs are entitled to an injunction restraining defendants from combining and acting in pursuance of said combination to entice away plaintiffs’ employes.” It also' refused to find “ that plaintiffs are entitled to an injunction restraining defendants from combining and acting in pursuance of said combination to prevent the plaintiffs from obtaining employes to carry on their business." It is also refused to find “ That the plaintiffs are entitled to an injunction restraining defendants from picketing plaintiffs’ factory.” There seems to have been no request made to find damages or to awrard damages to the plaintiffs in any specified amount. The effect of the decision for the defendants and the judgment entered thereon are to dissolve the injunction that was granted temporarily, although no formal language to that effect is found in the decision or the judgment. Gardner v. Gardner, 87 N. Y., 14; Jackson v. Bunnell, 113 id., 220; 22 St. Rep., 975.

It may be said that, reading the complaint in the light of the facts and the findings made, that the gravamen of the allegations therein is to set out, first, a conspiracy on the part of the defendants, and secondly, an enticement of the servants or employes from the plaintiffs. In Place v. Minister, 65 N. Y., 95, it was said: “ The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded.” When Dwight, Ji, used the language just quoted, he was dealing with an action at law brought for an alleged conspiracy to defraud the plaintiffs.

(2) Actions brought for the purpose of recovering damages for enticing away from the service of the master a servant, are treated as actions for a wrong. In Cowen’s Treatise, page 194, it is said : “ Whenever a servant is enticed away from his master’s service, the master is entitled to this action for the loss which he sustains. If a servant be taken away from his service, he may also bring an action of trespass, alleging his special damages.”

And, it is added, in treating the subject that “ the real gist of the action is the wrong.” In 1745, Lord Chief Justice Willes,. in delivering the opinion in Winsmore v. Greenbank, Willes Reports, 577, in an action for enticement treated it as “ a special action on the case.”

Sir William Blackstone, in treating of private wrongs in book 3, page 141, says: “For every master has," by his contract, purchased for a valuable consideration the service of his domestics for a limited time; the inveigling or hiring his servants, which induces a breach of his contract, is, therefore, an injury to the master; and for that injury the law has given him a remedy by a special action on the case.” See vol. 2, Sharswood Ed., § 4. In Caughey v. Smith, 47 N. Y., 244, it was held that, to maintain an action for enticement from service, that it must have been “ that the moving cause of the desertion was the inducement held out by the defendant • ” and in delivering the opinion in that case, Folger, J., says, at page 256, viz.: “ And it is to be borne in mind that it is an action of tort."

Appellants contend that “the enticing away of an employe even where there is no combination or conspiracy is illegal and actionable,” and call our attention to Caughey v. Smith, 47 N. Y., 244; Stuart v. Simpson, 1 Wend., 376; Woodward v. Washburn, 3 Denio, 369; Haight v. Badgeley, 15 Barb., 499. Stuart v. Simpson, supra, was an action on the case at law for enticement and harboring apprentices.

Woodward v. Washburn, supra, was an action on the case for the loss of services of a hired man, and Jewett, J., said in delivering the opinion, “ It is a principle of the common law, that where a person sustains a loss or damage by the wrong of another, he may have an action upon the case to be remunerated in damages;” and he refers to Hart v. Aldridge, Cowper, 54, as “ an action of trespass on the case for enticing away several of the plaintiff’s servants who used to work for him in the capacity of journeymen shoemakers,” in which case it was found by the jury “ that two of the persons enticed were employed by the plaintiff as journeymen shoemakers, but for no determinate time, and only by the piece; and that they had, at the time of the trespass laid, each of them a pair of shoes unfinished; that the defendant persuaded them to enter into his service and to leave these shoes unfinished, which they accordingly did;” and it was finally held in that case that an action at law would lie.”

Haight v. Badgeley, supra, was an action for trespass “ guare clausum fregit" for enticing away a servant of the plaintiff, and it was held in that case, viz : “ In this state, no absolute property can be acquired in the person or personal service of an adult by an executory contract; nor can such a contract be enforced by any criminal proceeding. The rule giving an employer a right of action for enticing away his servant has not been overruled here, it seems ;” and in the course of the opinion delivered by Hand, P„ J., he observed : “ In this state the contract for the personal services of an adult, as a general thing, is a matter for courts at law ; and for a violation of it the remedy is in damages; and a specific-performance will not be enforced.” Citing Hamblin v. Dinneford, 2 Ed. Ch., 529; Sanquirico v. Benedetti, 1 Barb., 315; De Rivafinoli v. Corsetti, 4 Paige, 264; and then he adds: “Ho absolute property can in this state be acquired in the person or personal services of an adult by an executory contract;” and in speaking of the character of the action he observed: “ The gravamen of the complaint is trespass domum fregit, and the persuasion of the servant is a matter of aggravation.” To support the contention of the appellants numerous other cases are cited which were actions at law. In Johnston Harvester Company v. Meinhardt, 9 Abb. N. C., 401; S. C., 60 How., 168, Macomber, J., in delivering an opinion adverse to granting an injunction “ against a confederation of persons whose object is tc entice away workmen from their employer’s employ,” and in stating that the remedy is an action for damages, refers to several of the cases already mentioned and many others, and then states that he is disinclined to extend “ the doctrine of recovery for enticing away servants, where, both in fact and theory, the person enticed is a free agent to come and go as he will, responsible only, like other persons, for the violation of his contract or his duty.’' That ■case was affirmed by this court, 24 Hun, 489, and it was then held “ That the acts not controverted, to restrain which an injunction was asked for, did not constitute an invasion of any clear right of property vested in the plaintiff; that it does not appear that such acts, whether done or threatened to be done, resulted or would have resulted in irreparable injury to the plaintiff; and that the discretion of the special term in refusing to continue the injunction was properly exercised. ”

While the facts appearing in the evidence and in the pleadings and findings in this case differ somewhat from those found in Johnston Harvester Company v. Meinhardt, supra, yet so far as this •case rests upon the right of maintaining an action in equity, it is quite similar to that case and it seems to furnish an authority for refusing to support the contention of the appellants that an injunction, permanent in its character, should have been granted by the ■special term at the time this cause was tried, by reason of the matters relating to the enticement of the servants of the plaintiffs. The strike commenced in June and was over on the 5th of October, 1890, and this action was brought to trial on the 24th day of June, 1891. But it is contended by the appellants that there was a conspiracy, or a combination on the part of the defendants to work an injury to the plaintiffs by enticing away plaintiffs’ employes.” In considering this question attention must be given to some modern statutory provisions relating to conspiracy. In § 170 of the Penal Code, it is provided as follows: “ and the •orderly and peaceable assembling or co-operation of persons employed in any calling, trade or handicraft for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate, is not a conspiracy.”

And § 171 of the Penal Code declares it to be a misdemeanor to “ coerce or compel any person or persons, employe or employes, laborer or mechanic, to enter into an agreement, either written or verbal, from any person, persons, employe, laborer or mechanic, not to join or become a member of any labor organization, as a condition of such person or persons securing employment, or continuing in the employment of any such person or persons, employer or employers, corporation or corporations.” In § 675 of the Penal Code it is provided, viz.: “A person who wilfully and wrongfully commits any act which seriously injures the person or property of another, or which openly outrages public decency, for which no other punishment is expressly prescribed by this Code, is guilty of a misdemeanor; but nothing in this Code contained shall be so construed as to prevent t!any person from demanding an increase of wages, or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered.” The language which we have given is taken from the section as amended in 1891. It may be observed the section authorizes persons to demand an increase of wages, or provides that it shall not be unlawful to do so, and also provides it shall not be a violation of law to assemble and use all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered; and the standard is laid down in the section to determine what shall be “ a just and fair compensation for services rendered ” or to be rendered. And in § 720 of the Penal Code, it is provided as follows: The provisions of this Code are not to be deemed to affect any civil rights or remedies existing at the time when this Code takes effect, by virtue of the common law or of any provision of statute.” It is contended by the appellants that these provisions of law do not take away the legal remedies that existed prior thereto, and that, therefore, they have a right to maintain an action for damages suffered by reason of any conspiracy or combination which produces injury to their property or their business interests. It is not needful to determine in this case precisely what is the scope and character of the rights of the plaintiffs to maintain an action at law for damages suffered by injuries resulting from a combination to their property or their business being carried on during the period of the existence of the strike.

When this action was tried apparently the combination was over and the threats to do injuries were over and the plaintiffs or their business were not in any manner in danger of suffering by reason of any combination then existing. If it be granted that by reason of such combination or conspiracy, as is claimed to have existed in this case, that the plaintiffs had a right of action to recover damages at law, it does not follow that they were entitled at the time of the trial of this action to have a permanent injunction awarded by the special term, nor does it follow that they were entitled to maintain this action on the equity side of the court to recover such damages as they had sustained. It is a familiar principle that a court of equity will not take j urisdiction where an adequate remedy at law exists if such defense be insisted upon in the answer as was insisted upon in the answer served in this case. Truscott v. King, 2 Selden, 164; Savage v. Allen, 54 N. Y., 458.

In People v. Barondess, 61 Hun, 575; 41 St. Rep., 659, a majority of the court seems to have been of the opinion in considering the penal sections to which we have referred and others, that the word “ property" occurring in such legislative provisions “ would not include a man’s business.” We do not deem it necessary to express an assent to that doctrine for the purpose of determining the case now in hand. It does not follow that if the combination and conspiracy in question were illegal or contrary to the provisions of the statute upon that subject, that an action in equity can be maintained, or that a court of equity has jurisdiction to give the relief sought in this case. In considering the term “ jurisdiction” in Bangs v. Duckinfield, 18 N. Y., 595, Johnson, Oh. J,, said that jurisdiction related not to the naked question of power, but rather to the fact that such power had or had not been usually exercised. Thus, the question presented to a court of equity by the objection that the complaining party had a full, adequate and complete remedy at the common law, related to the jurisdiction of the court of equity, and is consequently spoken of in the cases in that way.” Similar comments are made in Anderson v. Carr, 65 Hun, 181; 47 St. Rep. 494.

In McHenry v. Jewett, 90 N. Y., 58, it was said that “It is not sufficient to authorize the remedy by injunction that a violation of a naked, legal right of property is threatened, there must be some special ground, of jurisdiction, and where an injunction is the final relief sought, the facts entitling the plaintiff to it must be averred in the complaint.”

In Gilbert v. Mickle, 4 Sandford’s Chan., 357, Chancellor Sand-ford, in considering the cases in which equity would interfere, was called upon to determine whether an injunction should issue to restrain the placing of “ a placard ” paraded or posted in a public street, before the door of an auctioneer, cautioning strangers to beware of mock auctions, and he finally reached the conclusion “ that the court of chancery will not interpose to restrain such placard by injunction, but will leave the pally to his remedy at law.” And it was further stated in that case that “Equity always interferes with reluctance for the protection of rights of property by injunction, when those rights are mingled with the administration of criminal jurisprudence.”

Our attention is called to Sherry v. Perkins, 17 N. E. Rep., 307, in which case it appears there was a scheme by threats and intimidation to prevent persons in plaintiffs' employ from continuing in such employ, and in pursuance of the scheme the defendants “ caused a threatening banner to be carried in front of plaintiff’s shop, the effect of - which was to deter persons from continuing to work for or engaging with plaintiff, and the latter’s business was thereby injured and in delivering the opinion in that case the court stated that the “ banners were used more than three months before the filing of the plaintiff’s bill, and continued to be used at the time of the hearing,” and the court observed that the “ maintaining it was a continuous, unlawful act, injurious to the plaintiff’s business and property, and was a nuisance, such as a court of equity will grant relief against.” The findings in the case before us do not bring it within the exceptional circumstances of the case cited.

- In the case of N. Y., Lake Erie & W. R. Co. v. Wenger, cited in a note 24 Abb. N. C., 267, it appeared that there was a combination “ to go upon the premises of a railroad company to obstruct its business, and to prevent, by force or threats, its employes from performing their duty,” and it seems to have been held an unlawful assembling. The case differs from the one before us. It may be said that Walker v. Cronin, 107 Mass., 555, supports the plaintiffs’ right to recover in an action at law for damages caused by the enticement, but it does not support the right to maintain an action in equity based upon facts such as are stated in the findings in the case before us.

Appellants call our attention to Dunsbach v. Hollister, 49 Hun, 352; 17 St. Rep., 461, which is a case where a dealer in moulding sand had deposited upon his own lot adjoining that of the plaintiff a large quantity of sand, placing no covering over it, and so left that the wind would blow it over onto the house and premises of the plaintiff to his annoyance and discomfort In that case it was held that the injury was of such a character as to be the source of recurring personal annoyance, discomfort and inconvenience,in addition to the damage to property, and that, therefore, a case was presented that would not be adequately compensated in damages and that an injunction should issue.

The case is quite distinguishable from the one before us.

In Hutchins v. Smith,63 Barb., 252, which was a case to restrain gas and dust issuing from lime-kilns, it was found that the annoyance and injury were continuous, and to such an extent as to» amount to a nuisance, and, therefore, a perpetual injunction to restrain the continuance of the nuisance was allowed. That case differs from the one before us. '

In N. Y. C. & H. R. R. R. Co. v. City of Rochester, 127 N. Y., 594; 40 St. Rep., 193, it was held that a municipal corporation might be restrained from discharging sewage directly upon private lands, and a court of equity would take jurisdiction and grant an injunction to restrain the continuance of such injuries which might ensue from such wrongful acts. That case contains nothing supporting the rights of the plaintiffs to maintain an action in equity upon the facts found by the special term in the case before us.

Appellants call our attention to Adams v. Rivers, 11 Barb., 390, which was an action of trespass at law, and it was held: “ A person is a trespasser who, instead of passing along on the sidewalk of a street, stops on it, in front of a man’s house, and remains there, using toward him abusive and insulting language.” The case tends to support the right to recover at law for some of the acts specified in the findings before us, but contains nothing supporting the right to recover in an action in equity.

The case of the Tribune Association v. The Sun, 7 Hun, 175, was one where the defendant was about to take possession of the plaintiff’s lot and to use the same in making repairs to its own property, and it was stated to be a case “ where irreparable injury may and probably will result from the threatened wrong,” (Opinion of Daniels, J.,page 179), and, therefore, an injunction was allowed. And in Fox v. Fitzsimons, 29 Hun, 574, the defendant was excavating the plaintiff’s lot and erecting a building thereon whereby the foundations of the plaintiff’s house were damaged, and the free access of light and air to his windows impeded and destroyed ; an injunction was allowed as an exceptional case was presented. The general rule is that an injunction will not issue to restrain a trespass. Murray v. Knapp, 62 Barb., 566; Howe v. The Rochester Iron Manufacturing Co., 66 id., 592; Murray v. Knapp, 42 How., 462; N. Y. & A. R. R. Co. v. N. Y., West Shore, etc., R. R. Co., 11 Abb. N. C., 386. Nor to prevent an apprehended trespass. 1 Abb. N. C., 166. Nor where irreparable damage is not alleged and proved. Brennan v. N. Y. C. & H. R. R. R. Co., 30 St. Rep., 378; Mapes v. Charles, 8 Supp. 665; 80 St. Rep., 373.

The rule is also stated in Campbell v. Seaman, 63 N. Y., 569, where an exception to the rule was found to exist, and in the course of the opinion in that case it was said that whether an injunction should issne or not “ rests in the sound discretion of the court ” to which the facts of a particular case are presented.

In Young v. Campbell, 75 N. Y., 525, it appeared that a temporary injunction had been obtained, which was dissolved at special term and the order dissolving the same was affirmed and taken to the court of appeals for review, aud that court distinctly held, viz: “ The fact that the object of an action may be defeated by refusing a temporary injunction is not of itself sufficient to deprive the court of all discretionary power in the matter.”

In Mayor, etc., of Hudson v. Thorne, 7 Paige, 261, Chancellor Walworth said: “It is no part of the business of this court (court of chancery) to enforce the penal laws of the state, or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance. And it is nowhere alleged in this bill that the manufacture of pressed bay within the compact parts of the city of Hudson, in a building more than thirty feet square, is of itself a public nuisance.” In the complaint before us no allegation is found that the acts of the defendants are a public nuisance.

In Brandreth v. Lance, 8 Paige, 24, it was held “ The court of chancery has not jurisdiction to restrain the publication of a libel by injunction, upon a bill filed by the party whose character or business will be injured by the publication.”

In Crooke v. The Brooklyn, F. & C. I. Railway Co., 8 W. Dig., 252, in the general term of the second department, where the plaintiff sought to restrain the defendants from crossing a proposed bridge, it was said: “The remedy of an injunction is not an appropriate one to enforce the payment of compensation for an injury.”

In the course of the opinion delivered by Danforth, J., in T. & B. R. R. Co. v. B., H. T. & W. Ry. Co., 86 N. Y., 127, reviewing many antecedent cases, he says: “And although the form of actions and suits, and the distinctions between actions at law and suits in equity has been abolished, a party to entitle himself to the equitable remedy by injunction must still make such a case as would, while the distinction existed, have made an equitable cause of action. This is well settled ; ” and he cites numerous authorities in support of the proposition. See, also, Mapes v. Charles, 30 St. Rep.. 373.

While § 603 of the Code of Civil Procedure provides for cases in which an injunction order may be granted; it also _ provides, viz.: “ The case provided for in this section is described in this act as a case where the right to an injunction depends upon the nature of the action.” And § 604 provides for its being made to appear by affidavit to obtain an injunction that the defendant is suffering to be done, or threatens, or is about to do or suffer to be done, “ an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.”

With this language before us it may be inquired, what is the subject of the action mentioned in the findings in this case which brings it within the section ? As before observed, the strike began on the 17th day of June, 1890, and continued until the 5th day of October, 1890, when all of the acts mentioned in the complaint and in the findings apparently ceased, and the «trial of this action at the special term was on the 24th of June, 1891, and the changed situation and relations of the parties were made apparent by the evidence. From the foregoing views and authorities and the principles deduced therefrom, there may well be hesitation and doubt about the propriety of this court overruling the discretion used by the special term in refusing to grant a permanent injunction in the case made before that court. To do so would require us to” take a step in advance.of any well considered case found in this state on the subject of equity jurisdiction and the use of an injunction by such a court, and in effect require us to disregard the principle adopted by this court when it decided Johnston Harvester Co. v. Meinhardt, supra. The result is, therefore, reached that the conclusion of the special term should be allowed to remain.

Judgment affirmed, with costs.

Martin, J., concurs.

Merwin, J.

I concur in affirmance on the ground that at the time of the trial the occasion for asking relief by injunction had passed and no claim was made for recovery of damages.