text:
    JOSEPH H. BUSHBY, Plaintiff, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Defendant.

      Negligence — duty of a master to fwrnish a servant with safe machinery.

    Tlie plaintiff, while acting as a brakeman in the employ of the defendant, was injured by the breaking of a wooden stake upon a platform car loaded with lumber which was being carried by one of the defendant’s trains. This stake was, with several others, put in iron pockets at the sides of the car to keep the lumber in place. When the stake broke the lumber fell off, and the plaintiff was thrown to the ground and injured. Evidence was given tending to show that the stake which gave way was defective and partially decayed before it broke, and that these facts were apparent upon examination. At the trial the court nonsuited the plaintiff.

      Seld, that the nonsuit was improperly granted and that the case should have been submitted to the jury.
    That the defendant’s liability was not affected by the fact that the stakes were uniformly furnished by the shippers of the lumber, and that the stakes furnished in this case had been inspected by the defendant’s agents.
    That the duty of providing suitable stakes was a duty the defendant owed to its servants, and the negligence of the defendant’s agents in inspecting the stakes was the negligence of the defendant and not simply that of a co-employee of the plaintiff.
    Motion by the plaintiff for a new trial on exceptions taken at the Steuben Circuit, and ordered to be beard at the General Term in the first instance. At the trial the court nonsuited the plaintiff.

      A. Hadden, for the plaintiff.

      E. G. Sprague, for the defendant.
   Smith, P. J.:

The plaintiff, while in the employ of the defendant as a brakeman, was injured by the breaking of a wooden stake upon a platform car loaded with lumber, which was being carried in 'One of •defendant’s trains upon its railroad. The stake was one of several that were put in iron pockets at the sides of the car for the purpose •of keeping the load of lumber in place, and, by its breaking, a part of the lumber fell to the ground while the train was in motion and the plaintiff was thrown off with it, and thus was injured. The ■stakes were of whitewood, and there was evidence tending to show that the stake which gave way appeared after it broke to be of dozy, brittle and partially decayed wood, and unfit for the use to which it was put. It is well settled in this State that the duty of the master to the servant, and the implied contract between them, is to the effect that the master shall furnish proper, perfect and ■adequate machinery or other materials and appliances necessary for the proposed work; and that duty or contract is to be affirmatively and positively fulfilled and performed. (Laning v. The New York Central Railroad Co., 49 N. Y., 521; Corcoran v. Holbrook, 59 id., 517.) That rule, we think, was the measure of the duty of the •defendant to its employes in respect to providing the stakes referred to. The stakes were used to keep the lumber in place upon the ear, and were a part of the apparatus and appliances necessary for the transportation of lumber. The transportation of lumber was not an exceptional and unprecedented thing upon defendant’s road; it was done frequently, and as often as occasion required; the defendant had provided cars for the purpose, furnished with pockets for the reception of stakes ; and stakes were used whenever they were needed to keep the lumber in place. They, or some other apparatus to keep the lumber in position, were necessary to the prosecution of that branch of the defendant’s business.

It is argued by the defendant’s counsel that as the stakes were uniformly furnished by the shipper, the defendant was under no obligation in respect to them, except to inspect them, and that that duty was performed in the present case. But we think the defendant could not divest itself of the duty it owed to its employes by leaving that duty to be performed by the shipper, or by making an arrangement with him whereby he undertook to perform it.

It is also urged for the defendant that the testimony shows that the stake in question was apparently sound, and that there was no defect about it which could be discovered by a reasonably careful inspection. There is much testimony tending that way, but one of the witnesses testified that th e-outside of thé stake was “spongy and like a cork where it had been shaved off with an axe.” That, at least, raised a question for the jury as to whether a reasonably careful inspection would have disclosed the defect.

It is- contended that if the agents of the company who were charged with the duty of inspecting the car for the purpose of ascertaining whether it was properly loaded, failed to do their duty in that respect, their negligence is that of co-employes of the plaintiff, and the defendant is not liable to him therefor. The test is (to use the language of Folger, J., in Slater v. Jewett) whether the act that was to be done on this occasion was so essentially one for the master to do in his duty to his servants, that whatever subordinate was taken by him to do it, came to be the master in doing it.” (85 N. Y., 70.) If we are right in holding that the furnishing of suitable apparatus and appliances to keep the lumber in position was a duty which the company owed to its enqfioyees, it seems to follow that the agents whom it employed to inspect the stakes furnished by the shipper to see whether they were fit for the intended purpose, in making such inspection acted in the place of the employer. In this respect the case is parallel to that of Laning (supra) and that of Flike v. Boston and Albany Railroad Company (53 N. Y., 549).

We do not think the position of the defendant’s counsel can be maintained that the risk of the danger and injury which the plaintiff incurred was incident to his employment and was assumed by him. He assumed no risk of danger from defective machinery, materials or appliances, furnished by his employer, or which it was the duty of his employer to furnish; on the contrary, he had the right to assume that such articles were proper, perfect and adequate to the use for which they were provided. Nor can it be said as matter of law that the plaintiff was chargeable with negligence in not discovering the defect before he went upon the train. It does not appear that it was his duty to inspect the car to see whether it was properly loaded. True, he says that if he had discovered anything wrong about it he would have reported it, but he was under no obligation to make inspection. He says, also, that in passing the car he glanced at it but discovered no defect in the stake.

On the whole we think the plaintiff made a case for the jury, and that there should be a new trial.

BaeKee and Bradley, JJ., concurred; Haight, J., not voting»

Motion for new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Smith, P. J:

license: Public Domain

text:
    ORIN GILL and EBENEZER WEBSTER, as Administrators, etc., of ARTHUR O. GILL, Plaintiffs, v. THE ROCHESTER AND PITTSBURGH RAILROAD COMPANY, Defendant.

      Liability of a railroad company for putting a passenger off a train — when liable for injuries resulting from his inca/paeity to talce care of himself — what may be con-side/red as damages sustained by a fatlwr because of the negligent hilling of his minor son.

    The deceased, while a passenger on one of the defendant’s trains, was put off by the conductor for failing to produce a ticket or pay his fare, at a place called Haskins’ cut, distant something over a mile from the nearest station, and about 115 rods from the nearest accessible dwelling. He was put off at about half-past seven in the evening of Saturday, February twenty-fourth, on a dark, cold and stormy night. As the train moved away he was seen standing, or leaning, against the bank of the cut. He was not seen again until half-past seven on the morning of the following Monday, when his dead body was found on the opposite side of the track from that on which he was put off, lying in partially frozen mud and water. The immediate cause of his death was suffocation or drowning.
    The judge charged, among other things, that if more than necessary force and violence was used in putting the deceased off the cars, resulting in his being so stunned and paralyzed as to be rendered incapable of taking care of himself, and that by reason of such incapacity he fell into the müd and water and were drowned, the plaintiffs were entitled to recover.

      Held, that as the evidence was sufficient to authorize the jury to find that the facts assumed in the charge existed, the charge was correct.
    It was claimed by the plaintiffs that when the deceased was put off the train he was, to the knowledge of the conductor, so intoxicated as to be incapable of taking care of himself. The defendant’s counsel requested the court to charge that if the jury found that the intoxication of the deceased contributed in any degree to liis inability to get out of the situation in which he was found, such intoxication was to be attributed to him as contributory negligence, and, if it existed, prevented a recovery; also that if the deceased, being under the influence of liquor, fell in the place where he was found, and the influence of liquor contributed to, or aided in producing, his inability to get up out of that position, and his death was caused by suffocation or drowning, coupled with such inability, the plaintiff could not recover.

      Held, that the court properly refused so to charge.
    The judge, after instructing the jury that the plaintiffs were entitled to recover the damages sustained by the parents of the deceased by reason of the loss of his services during his minority, said: “Another item of damages which the jury have the right to consider and determine, is the benefit that would be likely to result to the parents of the deceased from the counsel and advice that they might have received from their son during life.” The evidence showed that the father of the deceased was a farmer, and that he had a wife, three daughters and two sons besides the deceased; that the deceased, who was about seventeen years old at the time of his death, was in good health and had always lived with his father, except when he worked out by the month in tho summer; that ho had assisted his father upon the farm, and that for a part of the winter preceding his death he had attended the district school.

      Held, that as there was nothing in the evidence or in the circumstances of the case to guide the jury in deciding the matter submitted to them by the said instruction, and as any conclusion they might reach on that subject would be the result of mere speculation, that it was error to so instruct the jury.
    MotioN by the defendant for a new trial on exceptions taken at the "Wyoming Circuit, and ordered to be heard at the General Term in the first instance.

      Johnson <& Dean, for the plaintiffs.

      Martin W. Coolce, for the defendant.
   Smith, P. J:

The action was brought to recover damages ensuing from the death of the plaintiffs’ intestate, Arthur 0. Gill, alleged to have been caused by the negligence of the defendant’s employees.

The deceased was a passenger on defendant’s train that left Le Roy, running westwardly, at about half-past seven in the evening of Saturday, 24th of February, 1883. He not having complied with the conductor’s call for a ticket or his fare, the train was stopped and he was put off at a point something over a mile distant from the Le Roy station, in what is spoken of by the witnesses as Has-kins’ cut, about 115 rods from the nearest accessible dwelling house. Tbe nigbt was dark, cold and stormy. As the train moved away, the deceased was seen standing or. leaning against the bank of the cut. No witness speaks positively to having seen him after that, nntil a few minutes past seven o’clock on the following Monday morning, when his dead body was found on the opposite side of the track from that on which he was put off, lying in partially frozen mud and water. The immediate cause of his death was suffocation or drowning.

At the trial two theories of the defendant’s liability were presented by the plaintiffs, upon the assumption that the putting of the deceased off the train at the time and place and in the manner shown by the. testimony, was an improper and negligent act. First, that the deceased was put off with unnecessary violence, and was so stunned or paralyzed thereby, as to be incapable of taking care of himself, and secondly, that he was so intoxicated as to be incapable of caring for himself, to the knowledge of the conductor when he put him off the train. The trial judge submitted each of those hypotheses to the jury, and they found a general verdict for the plaintiffs. The charge in respect to the first theory was, in substance, that if more than neeessary force and violence was used in putting the deceased off from the cars, resulting in the stunning or paralyzing of the deceased so that he was incapable of taking care of himself, and because of such incapacity he fell into the mud and water and was drowned, the plaintiffs were entitled to recover. To that part of the charge the defendant’s counsel excepted, on the ground that there was no evidence to warrant it. The case is not so bare of evidence on that subject as to justify the exception. One of the plaintiffs’ witnesses testified that he saw the conductor pulling the deceased out of the door. Another, that when the conductor was taking the deceased out, the latter was down; ke went out quick; ” * * * “he was going on the floor out of the door ” when witness first saw him. Another witness testified that she saw deceased as he was going over against the bank; he went as though he had been pushed with force, and was going with the force that he was propelled with against the bank ; “ while on the platform he seemed to be perfectly limpsy, and he seemed to be so after that; ” while on the platform, “ I should suppose he was standing; I could see part of his body above the window; be didn’t seem to Lave any government of himself — that is, use of his arms, and his head was lying over in a kind of limpsy manner; after he fell he laid just as he fell; I couldn’t say whether he fell with considerable force or not.” Another witness stated that she saw deceased lying on the bank after he was put off; saw him through the car window; he appeared as though he was lying on his back, as she thought; he appeared as though he was asleep; she didn’t notice him moving any. There was other testimony tending in the same direction to which it is unnecessary to refer. There is enough of it, we think, to warrant the charge.

Tñe appellant’s counsel further contends that upon the question of fact involved in the part of the charge excepted to, as above stated, the verdict is against the weight of evidence. That contention cannot be made here. Under the order made by the trial court the exceptions alone are before us. A motion for a new trial, on the ground that the verdict is against the weight of evidence, cannot be heard at the General Term in the first instance. It should be first made- at Special Term on a case, or at the circuit on the judge’s minutes. The General Term hears motions of that nature on appeal only.

Upon either theory presented to the jury, whether the deceased was incapacitated from caring for himself, by intoxication or by a paralyzing stun, if he was in fact so incapacitated, and so continued until he perished, we think his ejection from the cars, under the circumstances, must be regarded as the proximate cause of his death. By reason of his incapacity no voluntary and conscious act of his own could intervene between the original cause and the final result, and the case is the same in legal effect as if, when ejected from the car, he had been thrown into a pool of water and instantly drowned.

And the fact of his incapacity answers also the claim of the defendant’s counsel, that it does not appear that the deceased was free from negligence which contributed to his death.

The defendant’s counsel asked the court to charge that if the jury find that the intoxication of the deceased contributed in any degree to his inability to get out of the situation in which he was found, such intoxication is to be attributed to him as contributory negligence, and if it existed it prevents a recovery. Also, that if deceased, being under the influence of liquor, fell in the place where he was found, and the influence of liquor contributed to, or aided in producing, his inability to get up out of the position, and his death was caused by suftocation or drowning, coupled with such inability, the plaintiffs cannot recover. Each request was declined and the defendant’s counsel duly excepted. He now argues that the refusal was error, since the circumstances of the death were such that the jury might have found that the inability of the deceased to extricate himself was due to intoxication developing after he was ejected from the cars. But that view of the matter was not suggested at the trial, by a request to charge, or otherwise, so far as we are advised by the printed case. The requests which elicited the refusals excepted to conveyed no such idea, and in view of what the judge had previously charged to the effect that if the incapacity of the deceased was the result of his intoxication, the intoxication must have been known by the conductor when he ejected the deceased in order to entitle the plaintiffs to recover, the requests were properly refused.

A single other question remains to be considered. After the judge had instructed the jury that the plaintiffs, if entitled to recover, were entitled to the damages suffered by the parents of the deceased, because of the loss of his services until he obtained his majority, he further charged as follows: “Another item of damages which the jury have the right to consider and determine, is the benefit that would be likely to result to the parents of the deceased from 'the counsel and advice that they might have received from their son during life.” An exception duly taken raises the question whether that instruction was erroneous.

It has been said that the statute, in allowing “ pecuniary ” damages to be recovered, has set no bounds to the sources of such damages. (McIntyre v. The New York Central Railroad Co., 37 N. Y.., 287.) In order to constitute a pecuniary damage within the meaning of the statute, it is not necessary that there be a direct loss of money or property; it is enough if there be a loss of something of a pecuniary value, that is to say, which can be measured or recompensed by money. And it is not necessary that the loss should be of something to which the next of kin are legally entitled; it is enough, if it be the loss of something which they had a reasonable expectation of receiving, as matter of right or otherwise. Thus, the loss sustained by infant children from the death of their mother, in the consequent deprivation of maternal nurture and training, has been held to be a proper basis for a recovery. (Tilley v. The Hudson River R. R. Co., 24 N. Y., 471.) So, where the person killed was a child of very tender years, it was held that the parent was entitled to recover such reasonable damages as the jury should estimate from evidence as to the age and sex of the child, the circumstances and condition in life of the parents, or other facts existing at the time of the death or the trial. (Thl v. Forty-second Street, etc., R. R. Co., 47 N. Y., 319.)

We are not prepared to say that the item of damage suggested by the charge excepted to may not, in any case, form a ground of recovery under the statute. But where the person killed is a minor child, in order to justify a recovery on the ground indicated in the charge, there should be evidence justifying the conclusion that if the child had lived it might reasonably have been expected that the parent would have received from him advice and counsel of such a nature as to have a pecuniary value. The mere possibility that the parent might become dependent upon others for advice and'counsel in the management of ■ his affairs, by reason of imbecility or feebleness arising from old age or other cause, is too uncertain and remote to form the basis of a recovery. The only evidence in the case as to-the circumstances and condition in life of the father of the deceased and of his son is, that the father is a farmer; that he has a wife, three daughters and two sons surviving; that the deceased was in his seventeenth year at the time of his death; that his health was good ; that he had always lived with his father, except when he worked out by the month in the summer; that he assisted his father upon the farm, and had been in the habit of doing so since he was large enough to do anything, and that a part of the winter preceding his death he had attended school in the district in which his father lived. We think there was nothing in the evidence or in the circumstances of the case to guide the jury in deciding the matter submitted to them by the instruction excepted to, and that any conclusion they may have reached on that subject was the result of mere speculation. As it is impossible to say that their verdict of $2,000 was not enhanced thereby, there must be a new trial.

New trial ordered, costs to abide event.'

BARKER and Bradley, JJ., concurred; Haight, J., not sitting.

New trial ordered, with costs to abide the event.


author: Smith, P. J.: BARKER, J.: Beadley, J.

text:
    EDWARD P. STUART, as Trustee, etc., Appellant, v. THOMAS J. PATTERSON and Others, Respondents.

      Mddence — when a party cannot testify as to the address on a package sent try express to a person since deceased — Code of Civil Procedure, sec. 829.
    In Ibis action, brought to recover the possession of a farm, the defendant claimed that one Stuart, under whom the plaintiff claimed, had held the title to the farm in trust for the defendant to secure the payment of a certain sum of money, and that the said sum had been paid to Stuart. Stuart was a member of the firm of Freeland, Hoffman & Co., of New York, to which firm the defendant was indebted, as well as to Stuart, individually. TJpon the trial evidence was given tending to show that in November, 1842, the defendant deposited a package of gold in an express office at Rochester, containing an amount of money less than the amount of his indebtedness to the firm. Testimony was given from which it might be inferred that the gold was sent to the firm, and that it had received it and sent the defendant its voucher therefor. It also appeared that the package was opened at the place of business of the firm by Stuart himself. The defendant was allowed, against the plaintiff’s objection and exception, to testify that the package was addressed to Stuart, individually, and not to the firm, Stuart having since died.

      Held, that it was error to admit this testimony.
    That if it was admitted to show that the package was sent to Stuart,, and not to the firm, it related to a personal transaction or communication, and was inadmissible under section 829 of the Code of Civil Procedure.
    That if it was admitted siAply as a part of the description of the package delivered to the carrier, it was immaterial and irrelevant. (Bradley, J., dissenting.)
    Where the testimony of the surviving party will tend directly, or by proper inference, to prove a communication made, or a transaction had, between the witness and the deceased, under such circumstances as that it can be seen that the deceased, if living, might give testimony directly contradictory to that of the witness, or tending to repel the inference to be drawn therefrom, the testimony is inadmissible, provided the case, in all other respects, is within the statutes. (Per Smcth, P. .T.)

      Appeal from a judgment, entered on the report of a referee, dismissing the complaint on the merits.
    The action was brought to recover the possession of a farm situate in the county of Allegany, containing 435 acres, to which the plaintiff claimed title by virtue of a conveyance made by J ohn M. Stuart, creating a trust.
    The defendant claimed that he had the equitable title to the premises and was entitled to the possession thereof. The referee held that the defendant’s claim was supported by the evidence and directed a judgment in his favor, which was entered and from which the plaintiff appealed.
    It appeared that on the 4th day of April, 1837, the defendant purchased and took a conveyance of the premises'from Curtis Prentiss and wife, which contained covenants of seizin and warranty and expressed a consideration of $1,785.75, under which he went into possession. That subsequently and prior to the 14th day of November, 1842, the land was sold upon the foreclosure of a mortgage, made before the said conveyance was given, upon these and other premises, and was purchased on such sale by the Hudson Fire Insurance Company, which was then doing business in the city of New York. That on the 14th day of November, 1842, the insurance company executed a deed in terms conveying the farm to John M. Stuart, who was a member of the mercantile firm of Free-land, Hoffman & Co., of that city, the consideration expressed in the deed being $800. That Stuart gave a bond of the same date conditioned for the payment of that sum to the insurance company, in installments of $300 in one year, and $500 in two years from its date, with interest, and a mortgage on the premises of like date and condition, to secure the payment of the same. The execution of the deed and mortgage were acknowledged on the 15th day of November, 1842, in the city of New York. Thereafter this bond and mortgage were paid by Stuart. There was evidence given tending to prove, and the referee found, that after the purchase by the Hudson Fire Insurance Company, and prior to the conveyance to Stuart, the defendant had negotiation with the insurance company for the redemption of the premises, which resulted in a proposition from the company to convey the premises to him or to such nerson as he should name. for the sum of $800; that the deed of the insurance com. pany to Stuart was delivered by the company to the defendant; that before taking the deed he took the bond and mortgage to Stuart for execution, and delivered them to the insurance company •at the time he received the deed from it; that he took the deed to his home, in the city of Rochester, and caused it to be recorded with the clerk of Allegany county.
    On the 23d day of October., 1846, John M. Stuart executed to one John Minot Eosdick a deed conveying lands in the city of Brooklyn and also the land in question, and including a transfer of some personal property, in trust for the benefit of his wife and children, that is to say, to receive and pay to his wife Catharine E., the income during her life, and on and after her death to convey and transfer the property to ^he children then living of said John M. and Catharine E. Stuart. Shortly after that deed was made, and on the twenty-sixth day of the same month, J ohn M. Stuart executed another deed of the premises mentioned in the complaint to said Eosdick, in trust for the same 'purposes, which was recorded in the Allegany county clerk’s office December 7, 1846. John Minot Fosdick died in August, 1856, and in June following, John U. Entz was, by this court, appointed trustee in his place, and in October, 1866, he was, by the order of this court, permitted to resign and removed, .and John M. Stuart was appointed trustee in his place. John M. Stuart died January 9,1877, and on the 2d day of November, 1877, the plaintiff, by order of this court, was appointed in his place as such trustee. Testimony was given tending to prove, and the referee found that the defendant has been in the possession and had the control of the premises in question ever since he went in under the-deed of April 4, 1837 ; that since the time when the deed was given by the insurance company to John M. Stuart he had made many and valuable improvements on the property, and in that behalf had expended much of his time and some money by which the value of the farm has been greatly increased ; and that in doing this the defendant has manifested a purpose consistent only with a substantial interest on his part in the property. And more especially was such interest, or supposed interest, indicated by the fact that there did not appear to have been any arrangement for his compensation; and while the cost of the improvements exhausted all the income of the property, and probably more, the grantee Stuart advanced nothing to pay any of the expenses, nor-does it appear that he gave the property any personal attention, and the same may be said of the trustees prior to the plaintiff; that the relations of the defendant and John M. Stuart had been and were personal and intimate for several years before and at the time of the conveyance by the insurance company to the latter, and that-their friendship and confidence were reciprocal appeared by certain correspondence which was put in evidence. Stuart was a member of the firm of Freeland, Hoffman & Co. of New York, to which firm the defendant was indebted as well as to Stuart individually. Upon the trial evidence was given tending to show that in November, 1842, the defendant deposited a package of gold in an express office at Rochester containing an amount of money less than his indebtedness to the firm. Further testimony was given from which it might be inferred that the gold was sent to the firm ; that it had received it and sent the defendant its voucher therefor. It also’ appeared that the package was opened at the place of business of the firm by Stuart himself. The defendant was allowed, against the plaintiff’s objection and exception, to testify that the package was addressed to Stuart individually and not to the firm.

      Edwa/rd Harris, for the appellant.

      J. A. Stull, for the respondents.
   Smith, P. J.:

I agree with my brother BARKER in the opinion that it was error to permit the defendant to testify as a witness .in his own behalf that the package of gold coin which he sent by express was addressed to John M. Stuart, individually. Stuart was not living at the time of the trial, and from him the plaintiff derived his title to the land, for the recovery of the possession of which the action was brought. The direct tendency of the testimony was to show a paying or sending of money by the defendant to Stuart. Indeed, unless it had that effect, it was wholly immaterial and irrelevant, and for that reason was improperly received. I have read the opinion of my learned brother Beadley with care, but am unable to concur with him in his views on this question. The argument turns on the construction to be given to the word “ personal,” as used in 'section 829 of the Code. Does that term apply only to those communications or transactions in which the parties actually meet face to face ? To so hold would be to exclude from the operation of the section all communications and transactions carried on by means of the mail, the telegraph or other like means. In general, a message intrusted to either of those agencies, when it reaches its destination, would seem to be a personal communication between the sender and the receiver. Every case, however, must be determined by its own circumstances. In the present case, the superscription on the package was something more than a direction to the •express company, it was a communication to the person addressed, ■advising him that the package and its contents were intended for him. It appears that within the package was a letter written by the defendant. The letter was not produced at the trial. Suppose it had been lost or destroyed (as probably was the case), so that ■secondary evidence of its contents was admissible, would it have been ■competent for the defendant to testify to its contents, and to state that it was addressed to Stuart, and that it advised him that the money in the package was sent to him in payment for the land in suit ? If not, how does the case supposed differ in principle from the one in hand ? A person writes a letter and hands it directly to the person addressed. The letter being lost, is the writer a competent witness to give parol evidence of its contents in ■a ease within section 829 in all other respects ? I suppose even those who adhere to the literal rendering of the word personal ” would admit that it would apply to the case last supposed ; but what reason is there for a different interpretation in a case where the writer sends the letter to the person addressed, by the mail or any other mere carrier. Does the fact that- the parties do not meet make a difference ? One man converses with another by telephone. The parties do not meet; they may be miles apart; yet is either of them competent to testify to the conversation in his own behalf against the legal representatives of the other being dead ?

The vice of the ruling, as it appears to me, is that it permitted the witness to state a fact which, taken in connection with proof that the package reached its destination, raised the presumption that the money contained in it was paid by the witness to Stuart, individually, and not to the firm of which lie was a member. So that if Stuart bad been living it would have been competent for him,, and be would bave been required, for bis own protection, to testify to any fact within bis knowledge that tended to repel such presumption, as, for instance, that the package was not delivered to him, or that it was addressed to the firm and not to himself.

It is sometimes difficult to draw the line in construing the statute-referred to. I am not aware that the present case has its parallel in the books. But our Court of Appeals has characterized the statute as “ a beneficial one ” which ought not to be limited or narrowed by construction” (Holcomb v. Holcomb, 95 N. Y., 316, 325); and the same court has said that the spirit and purpose of the statute “is equality, to prevent undue advantage, and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn.” (Wadsworth v. Heermans, 85 N. Y., 639, 640.) Each of those injunctions seems to lead to the construction above indicated in the present case.

Pease v. Barnett (30 Hun, 525) was an action on a bond. The defense was that the bond had been altered after its execution by the insertion of a clause binding the separate estate of the defendant’s testatrix, a married woman. The case having come before this court on appeal, we held that it was not competent for the plaintiff, the obligor, although not present when the bond was signed, to testify as a witness in his own behalf that he saw the bond in the hands of his attorney after it was drawn and shortly 'before it was executed, and that it then contained the clause in question. ¥e were of the opinion that although the witness and the deceased did not meet, the execution of the bond was a personal transaction between them, within the meaning of the statute, and that the plaintiff was not at liberty to give testimony in his own behalf tending to show what was the wording of the bond at the time of its execution. In that case, the testimony was merely inferential as to the contents of the bond at the time of execution, since the clause which the witness saw might have been erased before the bond was signed; and the testataix, if living, could not have directly contradicted the plaintiff, but could only have repelled the inference arising from his testimony, by stating that the clause was not in the bond when she signed it.

Without undertaking to lay down a rule that will be applicable to all cases, I think it may be safely said that, in general, where the testimony of the surviving party will tend directly or by proper inference to prove a communication made, or a transaction had, between the witness and the deceased under such circumstances as that it can be seen that the deceased, if living, might give testimony directly contradicting that of the witness, or tending to repel the inference to be drawn therefrom, the testimony is inadmissible, provided the ease in all other respects is within the statute.

The present case is within that rule. The testimony thus improperly received touched a vital point in the controversy, and I am not able to say that it had not its legitimate effect in the decision of the case.

For these reasons I vote for a new trial.

BARKER, J.:

I am also of the opinion that the judgment should be reversed for the reason that incompetent evidence was received on the trial bearing on the material questions in issue.

The defendant did not produce any written evidence in the nature of a contract showing that he was the purchaser of the -property from Mr. Stuart, or that he had paid him the purchase-price on the parol contract, which he now alleges existed between himself and Mr. Stuart.

To maintain his equitable defense the defendant relied upon certain facts and circumstances proved by him, and from which the referee held that it was a fair and reasonable deduction that Stuart held the title in trust for the defendant, and that he had fully redeemed the same from such trust in the lifetime of Mr. Stuart.

While this may be a just and proper conclusion to be drawn from the history of the case, all of us agree, if any incompetent evidence was given on the trial over the plaintiff’s objection and exception, it is good ground for reversing the judgment. Permitting the defendant to prove by his own evidence the conversation between himself and Mrs. Stuart in 1865, being after Mr. 'Stuart had conveyed the land in trust for the benefit of Mrs. Stuart and others, was obviously erroneous. The interview with Mrs. Stuart was sought by the defendant, and his statements made to her relative to the property were mere declarations in bis own favor, and were in effect assertions that he had paid Mr. Stuart for the farm and that he held the title in trust for him, and Stuart had never paid anything toward the land. These declarations were not made to one interested in the fee of the land, nor was the defendant provoked to make the same by the assertions or conduct of the trustee, but were in fact voluntary utterances made by an interested party in his own behalf.

Mrs. Stuart, as one of the beneficiaries under the trust-deed, could not make an admission which would bind the trustee. As she could not impair the legal estate by grant, it would seem to follow as a legal proposition, admitting of no dispute, that her verbal admission should not be received to support an equitable title in another, which, when enforced, would destroy the title under which the trustee holds. (Pope v. Devereux, 5 Gray, 409.)

When the plaintiff interposed his objection to this evidence, the referee remarked that he would overrule the same as to Mrs. Stuart, as she was not the party to the record, and no objection was, or could be, made in her behalf, the meaning of the referee’s statement is not readily comprehended. The objection was made by the plaintiff on the ground that the defendant Patterson proposed to prove the conversation with Mrs. Stuart in support of his affirmative defense, and the record shows tüat it was received for that purpose. Therein lies the error.

In my judgment it was error to permit Patterson, as a witness, to testify that the gold sent by express was consigned to Mr. Stuart individually, and not to the house of Freeland, Hoffman & Co., as such evidence related to a transaction between himself and Mr. Stuart. At the time the gold was sent, Patterson was indebted to Stuart for the land, as was admitted on the trial, and he was also then indebted to the house of Freeland, Hoffman & Co., of' which Stuart was a member, in a sum greater than the value of the gold. When this proof was offered the defendant Patterson had given evidence from which it might well have been held that the gold was in fact sent by him to the firm to be applied on his indebtedness to them, and that they had received it and sent him vouchers therefor, one of them being in the form of their own note, payable to his order. This was the situation of the case when the defendant was permitted to testify that the address placed by him on the package of gold was to Stuart individually, and not to the firm. This evidence related to a transaction between the witness and Stuart, and must have been received and acted upon by the referee for the purpose of determining the disputed question as to the person to whom the gold was shipped. It was direct evidence in its character that it was not paid to the firm, and it was also equally positive evidence that it was paid over to Stuart individually on the land contract. "What is this, in the name of common sense, but a transaction between Patterson alive and Stuart dead, relative to the subject matter of the suit? If Stuart were alive he could speak on the same subject, and might dispute'the defendant’s version of the transaction. Both Patterson and Stuart were actors in that transaction, if in truth it be as Patterson now claims and testifies it was in fact. But it is said the address served as mere instructions by Patterson, the shipper, to the carrier of the package, and was intended for no other purpose. If this view be-taken of the purpose and object of the address, and it is to be regarded as nothing more, then why was the fact proved ? This argument demonstrates that the evidence was immaterial, and for that reason it was erroneous to receive it.

When it was established by the other evidence in the case that Stuart did receive the package at the counting-house of the firm, and there opened the same, it was still left uncertain in what •capacity he received it, whether for the firm to apply on their .account against Patterson, or for himself individually, to be applied upon the land contract. It was for the purpose of enabling the referee to dispose of this contention that the evidence was received. It related to and characterized Stuart’s act in receiving and opening the package, as it tended to prove that Patterson paid the gold to Stuart on the land contract, not by proving an act done by the carrier or some other person, but by proving a transaction in which they were both necessarily actors. The address, in view of the use now sought to be made by it, was in the nature of instructions on +he part of the consignor to the consignee, which might with propriety be written on the package as well as sent separately by letter, •as is customary in such transactions between merchants. So far as the address served as instructions to the carrier, it long ago served its purpose, and on tbis trial the form of the address was proved and received as competent evidence on an altogether different issue and between different parties. In my opinion the defendant Patterson was disqualified as a witness, by section 829, to prove the fact for which he contends, as Stuart is now dead and the plaintiff claims title under him.

The case of Koehler v. Adler (91 N. Y., 657), is similar in its material facts to the case now here, and is an authority, I think, in support of the views I have expressed. (See, also, Price v. Price, 33 Hun, 73.) “ The words of exclusion are as comprehensive as-

language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation,, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another.” (Holcomb v. Holcomb, 95 N. Y., 316.)

Beadley, J.

(dissenting):

After stating the facts of the case substantially as above set forth,. Judge Beapley proceeded:

The death of John hi. Stuart has deprived the case of the direct testimony which defendant, as well as he, might otherwise have-given, and some material facts requisite to the defense are found only in the inferences derived from circumstances, and in the circumstances themselves and their interpretation. The important facts are whether the deed made by the insurance company was taken really for the benefit of the defendant, and under an agreement between him and Stuart, to the effect that the defendant should retain control of the property, pay the amount required to-reimburse Stuart, and eventually have a conveyance made by the-latter to him of the farm, and whether the defendant did in fact pay him the amount so required to entitle him to the property.

The burden of showing that situation was on the defendant to divest the apparent title of the plaintiff derived from the deeds and the consequent right of possession which they seemed to afford. While-the intervention of the period of upwards of forty years has removed some of the guides and dimmed the way of inquiry, circumstances, have not within that time wholly failed to furnish some aid in reaching a conclusion in respect to tbe facts by which the rights of the parties are to be ascertained. The referee has found that the deed was taken by John M. Stuart from the Hudson Eire Insurance Company pursuant to an arrangement with the defendant, and for the benefit of the latter, and that by it the right was given to the defendant to repay Stuart the amount so by him secured to be paid, and retain and have the premises and the title to them. And that pursuant to such agreement the defendant paid the requisite amount to Stuart, and the latter received it and thereby the defendant became and was the owner of the farm in question having the equitable title to it. The evidence, as a whole, seems to be sufficient to support his conclusions of fact in those respects, and we hold that it is. ■ And without here fully relating the evidence and the deductions from it which lead to that result, reference is made to the well considered and somewhat elaborate opinion of the referee on those questions of fact, which is adopted and approved.

There are some circumstances appearing which in no manner east any unfavorable reflections on the conduct or purpose of Mr. Stuart; and which indicate a reason why the defendant may not have desired a conveyance from him for some years after the alleged transaction which vested in the latter the right and equitable title to the premises, which takes from the omission of the defendant to seek and obtain a deed, some of its force as evidence against his claim.

The remaining questions arise on the exceptions taken by the plaintiff on and after the trial. The defendant testified that on the 16th or llth day of November, 1842, he deposited a package of gold in the express office at Rochester; that it was addressed in writing and he had not seen it since (and it subsequently appeared in the testimony that it consisted of 217 sovereigns). He was then asked by his counsel, “ to whom was it addressed ? ” The plaintiff’s counsel objected on the grounds : 1. That it being in writing must be produced. 2. Unless it was addressed to John M. Stuart it is immaterial, and if it was so addressed it is incompetent as it was a personal transaction with him, deceased. The objection was overruled and exception taken. The answer followed, that “ it was addressed to John M. Stuart, of Ereeland, Hoffman & Co., or in care of Ereeland, Hoffman & Co., for John M. Stuart.” It having then appeared that Stuart was dead at the time of the trial, it is insisted on the part of the plaintiff that the question called for a personal transaction between the defendant and John M. Stuart, and the evidence was therefore incompetent under Code Civil Procedure, § 829.

The question is not entirely free from difficulty. To say that the witness sent to Stuart the package would seem to import a transaction between them. Here he described one delivered to the express company, and that description included the address written upon it. The fact of the delivery to the company, and the description of that delivered, was competent and any direction given to the agents or servants of the express company at the time does not seem to come within the inhibition of the statute, as it can be treated only as a communication to it. The question here is whether the address was a communication to, or related to, a personal transaction with Stuart by the witness, or was merely a direction to the express company. It was the latter; but was it anything more ? So far as appears the package contained no communication to Stuart, or any person, and may be distinguished to that extent from a letter having a superscribed address. The delivery of the package to Stuart would consummate or produce a transaction between him and the defendant." T3ut testimony which might, in effect, as evidence, bear upon a fact involved in a transaction with another might be competent, although the witness would not be permitted to testify concerning a personal transaction with such person. (Pinney v. Orth, 88 N. Y., 417, 451.) The delivery of a parcel to one with direction to deliver it to another person, might, if the direction be afterwards executed, operate in effect as a transaction between the two by means of the intermediate act of the third. Yet it would hardly seem that such direction would be treated as a personal transaction between those two persons. After it was delivered to the express company the defendant exercised no control over the parcel. The company had the custody of it with his directions accompanying it in respect to the destination the company should give to it. The address had no other purpose. The effect was the same and no different from what it would, have been if the direction had been orally given.

The personal transacción with Stuart was the delivery to him, which, if bad, was by tbe agent of tbe company. Nor was tbe address a personal communication by tbe defendant to Stuart. It conveyed no information as distinguished from the fact of delivery by tbe company, nor is it important whether it was written by tbe defendant or by tbe company pursuant to bis directions to deliver it. It was matter of identity and of guide to tbe company as carrier. (Hill v. Heermans, 22 Hun, 455; affirmed sub nom. Wadsworth v. Heermans, 85 N. Y., 639.)

Tbe evidence offered does not come within the statute, and tbe plaintiff’s exception is not supported by Pease v. Barnett (30 Hun, 525): Wilson v. Reynolds (31 id., 46); Koehler v. Alder (91 N. Y., 657); Holcomb v. Holcomb (95 id., 316).

It subsequently appeared by other evidence on tbe trial that tbe gold was shortly afterwards in tbe possession of Stuart at the store of the firm, and that by letter in tbe handwriting of Stuart, of date, New York, November 18, 1842, addressed to tbe defendant and subscribed “ F., H. & Co.,” it appeared that 217 sovereigns were received. There was some importance given upon tbe trial to tbe fact whether the package went pursuant to defendant’s direction to tbe firm, or to Stuart individually, and in that view tbe address upon it was deemed material. It was desirable to tbe defense that it went to him individually, because it was claimed on tbe part of the defendant that $750 of that gold coin was received by Stuart as payment of that amount of the purchase-price of tbe premises, and the referee so found.

Tbe testimony of one Bowman, then clerk of the firm, was to tbe effect that be was present at tbe store in New York in tbe latter part of November, 1842, when a package of money was received there by Stuart, who opened it, and on being asked by the witness where it'came from, answered that “it came from Patterson to pay for bis farm,” and tbe witness adds that it was in tbe neighborhood of $800 in gold.

The tendency of this evidence and some other circumstances, is to show that tbe money was received by Stuart, and that- $750 of it was so applied by him, and without the aid of the testimony given by the defendant of the address on the package, was sufficient to support the conclusion of the referee in respect to such application of that amount of it.

In September, 1868, the defendant received a letter from Mrs. Stuart, by tbe terms of wbicb she treated him as having had the •agency of the farm and suggested that her son was ready to take possession.

After the receipt of the letter the defendant had an interview with her; and, when asked to state the conversation, the plaintiff objected that it was inadmissible and incompetent, the objection was overruled “as to her,” and exception taken. Mrs. Stuart was not a party plaintiff on the record, but she was a oestui que trust in the deeds referred to, and by tbem was given the income during her life of the property conveyed, in which was included this farm. She had written him the letter assuming that the title had passed by the deeds to the trustee.

The defendant met her, and in reply to the letter made to her an oral statement of his claim in respect to the premises. Her apparent relation to the farm or the income of it justified her letter and permitted, if it did not require him to make the explanation and give the information he did to her. And the reception of that statement in evidence was a qualified one. It was received as to her only.

The statement so made by him furnished no evidence in the action of the facts stated, but was a mere assertion of a claim when his right was challenged by a person having an interest in doing so, and an apparent interest in the use and proceeds of the property. It may be treated as a statement in reply to assertion of right adverse to that, which he claimed to the premises, and further than that it had no importance or materiality for any purpose. If it be assumed that this evidence was incompetent because Mrs. Stuart was not a party to the record, it cannot be assumed that any effect was given to it by the referee as against the plaintiff, but the contrary, as it was not received as against him, and to that extent the situation is different from what it would have been if the trial was before a jury. And even then the direction given them by the court to disregard it would be effectual to cure the error, if the other evidence is sufficient to support the verdict. (Mandeville v. Guernsey, 51 Barb., 99; Stone v. Frost, 6 Lansing, 410.)

The review of trials before referees brings to the consideration the case upon the evidence as a whole as distinguished from a review on exceptions only. And technical errors which it can fairly be seen did not prejudice the party in tbe result will not be made grounds for granting new trial, nor unless there are probable grounds to believe that injustice has been occasioned by them. (Crary v. Sprague, 12 Wend., 41.)

The ground of objection is general, and although such objection may be sufficient where it could not be obviated if specifically made, jet that rule is not universal. (Levin v. Russell, 42 N. Y., 251, 255, 256 ; Daly v. Byrne, 77 id., 183, 187.) It may be and it would seem that for the time being the referee had the impression that Mrs. Stuart was a party, and when he overruled the objection as to her, if the ■objection that she was not had been specified, the question may have been withdrawn or the objection sustained. The plaintiff was fairly required, under the circumstances, to suggest the reason specifically if that was the ground he had in view. (Ward v. Kilpatrick, 85 N. Y., 413, 417.) The objection and exception as taken ■do not support error nor justify its predication upon them.

The testimony given by the defendant of the arrangement between him and the' insurance company, giving him the opportunity to purchase or cause to be conveyed the premises to such other person as he might name for a specified consideration, was properly received in view of the evidence which followed relating to the part he took in procuring the deed to Stuart, and to the purpose for and the arrangement under which it was taken, out of which arose the defendant’s alleged right to reimburse him and have the property.

The exceptions to the conclusions of fact and law of the referee are not, nor is any one of them well taken. And the propositions he refused to find, so far as material, are inconsistent with his findings as made. The exceptions to those refusals do not, nor do any others taken on the trial, require further consideration.

The judgment should be affirmed.

Haioht, J., not sitting.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.


author: Haight, J.:

text:
       MARTHA J. PARSONS, as Executrix, etc., of KIRK P. PARSONS, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — duty of a railroad company as to running trains through its stations, while passengers a/re alighting from trains — what ca/re must be exercised by a passenger leaving a train before it stops.

    Where, upon the arrival of a passenger train in a station a passenger leaves the same before it has stopped, and before any invitation or notice to leave the train has been given, and, after alighting safely, attempts' to cross tracks lying between the train and the station platform, he is bound to use the same care in attempting to cross such tracks as would be required of a person attempting to cross railroad tracks upon a highway.
    As to a person so leaving one of its trains, it is not, as matter of law, negligence on the part of the company to run trains or engines rapidly past or through the station at such a time on such intervening tracks.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon tbo minutes of tbe justice before wbom the action was tried.
    The action was commenced in 1881. It was tried January, 1882, a verdict being rendered in favor of the defendant, and the plaintiff’s exceptions being ordered to be heard in the first instance at the General Term. At the General Term a new trial was directed, the following opinion being delivered by Smith, P. J.
    Smith, P. J.:
    This action was brought to recover damages for the alleged negligent killing of the plaintiff’s testator, Kirk P. Parsons, by the defendant at its Ferry street station in the city of Buffalo.
    It appeared at the trial that the deceased, on the day of the accident took the defendant’s train as a passenger, at the Terrace station, in Buffalo, about six o’clock in the evening. The defendant has two tracks at that section of the road and the train was on the easterly track. As the train entered the station grounds at Ferry street it was about three minutes late. Just before the train came to an entire stop, but whilst it was moving no faster than an ordinay walk of a man, the deceased stepped from the forward platform of the car on which he stood and alighted safely on the space between th& two tracks, nearly opposite the south end of the station-house.
    He then walked beside the train in the direction in which it was' moving, a distance of about forty-five feet, upon and partly across the westerly track, without looking up or down the track, when he was struck by a locomotive going to the south. There was evidence tending to show that the train which the deceased left continued to move slowly after the deceased alighted and before it stopped, about sixty feet and until the platform from which he alighted was beyond the north end of the station-house, and that it moved a few feet after the deceased was hit. When the deceased left the train no other passenger had alighted from it, and there had been no invitation of notice given by the defendant to passengers to leave the train. The judge charged the jury that if they found that the train from which Parsons alighted had not come to a stand when he was struck, the plaintiff could not recover. That instruction was excepted to, and it presents the main question in the case.
    The counsel for the plaintiff seems to assume that this instruction was based upon the theory that the act of the deceased in stepping from the train while it was in motion was negligent, and was the direct and proximate cause of the injury. In view of the fact that the deceased alighted in safety, escaping all the risks that ordinarily attend an attempt to get off a railroad train while in motion, we do not think the charge was so intended, or that it could have been so understood by the jury. But the instruction was probably based upon the idea that if the deceased had not left the train before it stopped, he would have escaped the danger of being hit by the passing engine, as that had gone by when the passenger train came to a halt. But even in that view we think the instruction was erroneous and was calculated to withdraw the attention of the jury from the real issues. Those issues, as we conceive them, we will proceed to state.
    The theory of the complaint is that at the time of the injury the deceased bore to the defendant the relation of a passenger, and that the defendant owed him, the degree of care to which that relation entitled him. It is true he had entered the train as a passenger, and was entitled to be carried safely and to have safe egress afforded him from the train, at a proper place and a proper time. It was not a proper time to leave the train when it was in motion, and before the defendant had signaled passengers to alight, and the deceased having left the train under those circumstances could not claim any other degree of care from the defendant while he was attempting to cross its track, than if he had not previously borne to it the relation of a passenger.
    But we do not think that circumstance created such a variance between the case proved and that alleged in the complaint as to prevent a recovery in case the injury was the result solely of negligence on the part of defendant.
    The deceased having alighted safely, the circumstance that the train was still in motion was of no importance except as it bore upon the question of the defendant’s negligence. It was held in Terry v. Jewett that it was negligence in a railroad companyV» run a train rapidly past a station at a time when a passenger train was due upon a track intervening between the passenger train and the station. • (17Hun, 396; S. C., affirmed, 78 N. Y., 338.) But if it was at a time when no train was due, or was at the station ready to receive or discharge passengers, obviously no negligence would attach to the bare act of running a train past a station. So, here, inasmuch as the deceased left the train before it had stopped, we think it cannot be said, as matter of law, that the running of the freight train past the.station at that instant was a breach of any duty which the defendant owed to the deceased as a passenger, or otherwise. Whether the train was so managed or run as to constitute negligence was a question for the jury.
    As to the question of negligence on the part of the deceased, we conceive that he was bound, under the circumstances, to use the same care in attempting to cross the track as would be required of a person attempting to cross upon a highway. As the place was one where passengers were accustomed to cross, he was not a trespasser, but as he attempted to cross before his train had stopped, he was not there at that time by the invitation of the company. And it was, therefore, a question for the jury to determine whether, in attempting to cross the tz-ack as he did he neglected to use due care and caution for his own safety.
    But these questions were withdrawn from the jury by the instruction referred to, and tbe case was made to turn upon what we conceive to have been an immaterial issue.
    New trial ordered, costs to abide event.
    HaediN and Macombee, JJ., concur.
    Ordered accordingly.
    A second trial was had in October, 1883, at which the jury disagreed. A third trial was had in December, 1883, at which a verdict in favor of the plaintiff for $5,000 was rendered, upon which a judgment was entered.
    TJpon this appeal the following opinion was delivered by Haight, J.

      George G. Greene, for the appellant.

      Charles B. Wheeler, for the respondent.

       Decided April Term, 1885.

   Haight, J.:

This action was brought to recover damages for the alleged negligent killing of the plaintiff’s testator, Kirk P. Pars'ons. The deceased, on the day of the accident, took the defendant’s train as •a passenger, at the city of Buffalo, for La Salle, in the county of Niagara. He proceeded on his journey as far as the station known as the Perry, where he had relatives living on the west side of the track and adjoining the station, but opposite to the station house. As the train entered the station grounds and before it came to a •stop, the deceased stepped from the forward platform of the car on which he stood, and alighted on the space between the east-bound and west-bound tracks. He then walked at a rapid gait by the side -of the train, and diagonally across the west-bound track, but before passing the west-bound track he was struck by a freight train going west and killed.

In the submission, of the case to the jury the defendant’s counsel requested the court to charge the jury that “if Parsons was a pas-senger from Buffalo to La Salle and got off the train at Ferry street ¡station, while the train was in motion, intending to return to the train and continue his passage on the same train to La Salle, and without looking or listening for approaching engines or trains passed upon tbe west track where he was injured, the defendant, at the time he received such injury, owed him no duty as a passenger, and is not liable for a breach of duty to him as a passenger, and there could be no recovery in this action.” The court refused so to-charge, and the defendant’s counsel excepted. Defendant’s counsel also asked the court to charge “ if, by looking, Parsons could have seen the train approaching and avoided injury, and failed to do so, he is chargeable with contributory negligence and no recovery could be had.” The court refused so to charge, and defendant’s counsel duly excepted to such refusal. Defendant’s counsel also requested the court to charge “if Parsons would have seen the approaching locomotive in season to have avoided it, had he looked before attempting to cross, it will be presumed he did not look, and by omitting so plain and imperative a duty he will be deemed to have been guilty of negligence, which precludes a recovery.” The court refused so to charge, and the defendant duly excepted.

Defendant’s counsel also requested the court to charge that. “ Parsons was bound to look down the west track before going upon it. By down,’ I mean to the north. If he failed to do so it was negligence on his part and no recovery could be had.” This the court refused to charge and defendant’s counsel duly excepted.

These exceptions and refusals to charge present the only questions which we deem it necessary to consider upon this appeal. It appears-that this ease has been once before considered by this court on a former appeal, and it was then held that it was not a proper time to leave the train when it was in motion and before the defendant had signaled passengers to alight; and that the deceased having left the train under those circumstances, could not claim any other degree of care from the defendant while he was attempting to cross its tracks, than if he had not previously borne to it the relation of passenger; and that as to the question of negligence on the part of the deceased, he was bound, under the circumstances, to use the same care in attempting to cross the tracks as would be required of a person attempting to cross upon a highway. That the running of the freight train past the station before the passenger train had come to a halt for the discharge of its passengers was not, as a matter of law, a breach of any duty which the defendant owed to the deceased as a passenger or otherwise.

It is not our purpose, in considering this appeal, to adopt any other or different rule, for we believe it to have been correctly stated by this court on its former review of the case. The rule is now well settled that when a passenger train stops at a station to receive and discharge passengers, it may be assumed that the railroad company, in the exercise of ordinary care, so regulates the running of its trains as to afford safe ingress and egress to and from its trains to its passengers, and that they are not called upon to exercise that degree of vigilance which is required of persons crossing upon a highway. (Terry v. Jewett, 78 N. Y., 338; Brassell v. The N. Y. C. and H. R. R. R. Co., 84 id., 243.)

This rule, however, does not exist until the passenger train has ■stopped for the purpose of receiving and discharging passengers. In the case of Terry v. Jewett, the passenger train had arrived at the depot and stopped. It then started to draw up in front of a platform, from which milk was to be taken on board. The deceased rushed from the depot across the track towards the passenger train, and she was struck and killed by a freight train passing between the depot and passenger train. In this regard the case is distinguishable from the one under consideration, for she might well have inferred by seeing the train in motion after it had once stopped that it was about to proceed upon its journey, not knowing that it was the intention to stop at the platform.

In the case of Brassel v. The New York Central and Hudson River Railroad Company, the train had stopped for the discharge •of its passengers, and all or nearly all of the passengers had alighted from the train when the deceased stepped out and then turned to assist an old lady who was accompanying her from the train, and ■after doing so started to cross the other tracks of the corporation and was struck by a passenger train.

So that Parsons, by jumping from this train whilst it was in motion, before it had stopped for the discharge of its passengers, did so at his peril. He had no right at that time to assume that other trains would not be passing upon the west-bound track, and in attempting to cross the same he was bound to make use of the same vigilance as crossing upon a highway. If, however, he alighted from the train whilst it was in motion, and then continued to walk by the side of the train until it came to a stand, then we are of the opinion that he, with the other passengers, would have the right to assume that no trains would run through the depot so-as to endanger the passengers entering or leaving the train, and that he would not then be called upon to make use of the vigilance that he otherwise would.

It is now well settled that an individual crossing a railroad track upon a highway must both look and listen. He must make a vigilant use of his eyes and ears before crossing the track. (Mitchell v. The. N. Y. C. and H. R. R. R. Co., 2 Hun, 535; affirmed, 64 N. Y., 655; Wilcox v. Rome, W. and O. R. R. Co., 39 id., 358-361; Cordell v. N. Y. C. and H. R. R. R. Co., 75 id.. 330-332; Kellogg v. N. Y. C. and H. R. R. R. Co., 79 id., 72-76; Becht v. Corbin, 92 id., 658.)

Some of the requests to charge are within the precise language of the authorities, and if the rule is to prevail that the deceased was bound to exercise the same vigilance that he would in crossing a highway, these requests were proper and should have been charged. It is contended, however, on the part of the respondent that the case now differs from the one that was before this court upon its former review; that this case tends to show that the passenger train had come to a halt before Parsons attempted to cross the other tracks and before he was struck and killed. It does not appear, however, that the case was tried or submitted to the jury upon this theory. Several witnesses testify that the passenger train moved from a-half to the length of a coach after the freight train passed. The only testimony in the case tending to show that this was not so is the testimony that several passengers had got off of the train on the depot side when Parsons was struck. It appears that about 120 passengers got off at this station, and whether these persons had stepped from the train before it stopped or not does not appear. The respondent’s witness, upon this question, when asked if the train had come to a stop when the freight train passed, answered, “Well, I can’t testify positively as to that.” This is all the testimony to which our attention has been called tending to show that the train had stopped.

The court in its charge to the jury stated that “he (Parsons) proceeded on the train to Black Eock Perry station, and there, before the train had stopped, it would seem from the evidence, he alighted from the train and attempted to pass across the westerly tract in a diagonal direction towards the hotel, and as he stepped npon the westerly track was struck by the locomotive,” etc. The respondent did not except to this charge or request the court to submit to the jury the question as to whether the passenger train liad stopped or not prior to the passing of the freight train. It thus appears that this question was not left for the consideration of the jury. The jury was called upon to determine the question of the deceased’s negligence upon the theory that he attempted to cross the defendant’s tracks before the passenger train had stopped to discharge its passengers, and upon that theory of the case and in the absence of evidence that there was anything to distract his attention, the appellant was entitled to have the above requests charged.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

Beasley, J., concurred; BaeKee, J., concurred in the result.

Judgment and order reversed and new trial ordered, with costs to abide the event.


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    THE CITIZENS’ NATIONAL BANK OF HORNELLSVILLE Respondent, v. ISAAC ALLISON.

      Judgment by confession — when the statement of the facts out of which the debt a/rose is insufficient— Code of Givil Procedure, sec. 1274, suh. 2.
    A judgment was entered in favor of tire assignee of a firm, by confession, the debtor stating tbat it was confessed “for money due to the said plaintiff as assignee aforesaid, and (that) the following is a concise statement of the facts out of which the debt arose, constituting the liability, it being for money borrowed or had of said Mortimer Allison and Lawrence Allison, at the Bank of Oanisteo, on four bank notes, as follows : One note of $2,000, dated April 4,1883, due in three months from the date thereof ; one note of $2,000, dated June 9, 1883, due in three months from the date thereof; one note of $2,000, dated August 9, 1883, due in six months from the date thereof; one note of $2,000, dated September 8, 1883, due in three months from the date thereof. All of said notes are now due and unpaid, and were made payable at the Bank of Oanisteo, N. Y., and the sum confessed therefor is justly due, and does not exceed the amount of the liabilities.”

      Eeld.Xhxt the statement did not show that any money was due from the judgment debtor to the firm or the assignee, and that it was not sufficient within the requirements of subdivision 2 of section 1274 of the Code of Civil Procedure, to support the judgment entered upon it.
    Appeal by Jackson W. Bowdish from an order made at the Monroe Special Term, on the motion of the above named plaintiffs, setting aside a judgment, entered in favor of Jackson W. Bowdish against the defendant Isaac Allison by confession ; the execution issued thereon and the sale of the property by virtue thereof.

      A. M. Burrell, for the appellant.

      W. F. Qogswell, for the respondent.
   Haight, J.:

On the 30th day of April, 1881, the plaintiff obtained a judgment against Isaac Allison for $12,785.03. On the twenty-ninth day of July thereafter an execution was issued thereon to William Murray, a deputy sheriff, who on the ninth day of August levied upon a stock of shoes in the factory formerly carried on by Allison. On the 8th day of November, 1884, an order in aid of the execution was made, requiring Allison to appear and be examined concerning the property, and in the order he was enjoined from making any transfer or disposition of the property. The order was duly served and Allison had appeared from time to time before the referee and been examined. One Bowdish was present at such examination. On the 4th day of December, 1884, and during the pen-dency of such proceedings, Allison confessed a judgment in favor of Jackson W. Bowdish, as assignee of Mortimer Allison and Lawrence Allison, for the sum of $8,689.33. On the same day an execution was issued thereon and delivered to one McConnell, another deputy sheriff, who, on the same day, levied on the same property, and advertised the same for sale, and six days thereafter the property was sold and bid in by Bowdish for the sum of $150. The property so sold and bid in by Bowdish was of the value of $2,000 and upwards. The plaintiffs had no notice of such confession .if judgment, levy or sale until after the sale had been made. Immediately upon discovering these facts motion was made to the Special Term to have the same set aside, and from the order granting such motion this appeal was taken.

The first question which it becomes necessary to determine is whether or not the judgment entered in favor of Bowdish, upon the confession of Allison, is a good and valid judgment. The statement is as follows:

“ I, Isaac Allison, the defendant- named in the above entitled ■action, do hereby confess judgment in favor of Jackson W. Bow-dish, assignee of Mortimer Allison and Lawrence Allison, for the benefit of creditors, under the general assignment act of 1877, the plaintiff therein named, for the sum of eight thousand six hundred and eighty-nine dollars and thirty-three cents, and do hereby authorize the said plaintiffs to enter judgment therefor against me. This confession of judgment is for money due to the said plaintiff as assignee aforesaid, and the following is a concise statement of the facts out of which the debt arose, constituting the liability; it being for money borrowed or had of said Mortimer Allison and Lawrence Allison at the Bank of Canisteo, on four bank notes, as follows: One note of two thousand dollars, dated April 4, 1883, due in three months from the date thereof; one note ■of two thousand dollars, dated June 9, 1883, due in three months from the date thereof; one note-of two thousand dollars, dated August 9, 1883, due in six months from the date thereof; one note of two thousand dollars, dated September 8, 1883, due in three' months from the date thereof. All of said notes are How due and unpaid and were made payable at the Bank of Canisteo, N. Y., and the sum confessed therefor is justly due and does not exceed the .amount of the liabilities.
“ (Signed) ISAAC ALLISON,
Defendant.”

Subdivision 2 of section 1274 of the Code provides: “ If the judgment to be confessed is for money due or to become due, it must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due or to foeeome due.”

The question is, does this statement contain the facts out of which the debt arose, concisely stated \ It will be observed that Isaac Allison in no place states that he owed Mortimer Allison and Lawrence Allison any sum whatever. He does state that the confession •of judgment is for money “ due to the said plaintiff as assignee aforesaid.” He does not, however, state that the money was due-from him. Further on he states that it was for money borrowed or had on four bank notes of $2,000 each. Neither the maker or the payee-of the notes is given. It does not appear whether the money was borrowed or had. From aught that appears to the contrary, the notes may have been notes of third parties, sold to Mortimer and Lawrence Allison, and the money “ had ” thereon the proceeds of such sale. It does not appear that the defendant Isaac Allison ever borrowed or had the money. Every statement contained in this confession of judgment may be strictly true and still Isaac Allison may not have owed Mortimer Allison and Lawrence Allison a single dollar. We consequently are of the opinion that the statement is insufficient; that it fails to show that Isaac-Allison was in debt to Mortimer and Lawrence Allison in any sum whatever.” (Combs v. Bowen, 20 Weekly Dig., 57; Chappel v. Chappel, 2 Kernan, 215; Dunham v. Waterman, 17 N. Y., 9; Freligh v. Brink, 22 id., 418.)

The case of Marrin v. Marrin (27 Hun, 601; reversed, 92 N. Y., 644) is clearly distinguishable. In that ease the statement was-to the effect that the executor and trustee had been acting as such of property for the plaintiffs, and that on an accounting before the surrogate, as executor, etc., “it appears that there is now due and owing to said'plaintiffs the sum of two thousand five hundred dollars,, and that the same is already justly ¿w to saidplamtiffs from meP Had the statement under review contained the concluding words of this sentence, a very different question would have been presented for our consideration.

The case of Harrison v. Gibbons (71 N. Y., 58) is likewise distinguishable. In that case the statement was to the effect that he “ has and had obtained groceries, provisions, crockery, money, flour, etc., to the amount of $1,109.41, including interest, of John Owens,” etc. It thus appeared that he had had the property, the amount,, and of whom had.

In the second place it is contended that the plaintiff has no-standing in court, for the reason that his levy had become dormant by reason of instructions given to the deputy sheriff. We are, however, of the opinion that this claim is nor sustained by the facts. It is true that the appellant presented affidavits of Charles Adsit and B. S. McConnell, wbo state that tbej had a conversation with 'William H. Murray and that he stated to them that he would not sell the property levied upon by him without a bond of indemnity from the bank. And that McMaster answered him: “We will see about that; just let it rest,” etc. These at most were declarations of Murray, not a party to the action or this motion, and the plaintiff cannot well be held bound by his declarations when not under oath. Murray in his affidavit states that after making a levy he was told that there was a dispute about the title to the goods levied upon, and that he requested G. N. Oreut, one of the plaintiff’s attorneys, to procure an order in aid of the execution and investigate the title to the goods, and thereafter he served such an order in said action upon Allison; that it has at all times been and is now his purpose and intention to sell the goods in pursuance of the plaintiff’s execution, and whatever delay there has been, has been caused by his desire to learn all the facts in regard to the ownership of the goods, and by no other cause whatever. This clearly negatives any direction on the part of the plaintiff to the deputy sheriff that would make the execution dormant.

Again it is contended that the plaintiff, being a senior judgment-creditor, is not in a position to move to set aside a junior judgment. This is doubtless true. The plaintiff is only interested in the property which has been sold by virtue ot the execution. The plaintiff had the right to have the property sold and the proceeds applied upon its judgment. This may still be done if the sale should be set aside.

We are consequently of the opinion that the order should be modified so as to set aside the sale under the execution only, and as so modified affirmed, without costs.

SMith, P. J., BarKbr and BRAnLEY, JJ., concurred.

So ordered.


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    LEANDER W. KAUFMAN, as Executor of MARY J. KAUFMAN, Deceased, Appellant, v. FRANCIS A. SCHOEFFEL, as Sheriff, etc., Respondent.

      Ma/rried woman — s7ie cannot carry on business as a pm'tner with Tier husband.

    The statutes of this State enabling a married women to enter into contracts and to carry on any trade or business, and perform any labor or services on her sole and separate account, do not authorize or empower her to enter into a copart-nership with her husband for the purpose of carrying on a trade or business.
    Appeal from a judgment, entered upon a nonsuit at tbe Monroe Circuit, and from an order denying a motion for a new trial made upon tbe minutes of the court.

      George G. Forsyth,, for tbe appellant.

      Henry G. Danforth, for tbe respondent.
   Haight, J.:

This action was brought by tbe plaintiff, as executor, etc., to recover for the conversion of certain personal property alleged to belong to tbe estate of Mary J. Kaufman, deceased. Tbe defense was that the talcing complained of was'under an execution issued on a judgment in which tbe plaintiff, individually, was judgment debtor, and that Mary C. Kaufman was his wife, and that they were engaged in business as copartners; that tbe property taken was copartnership property, and that on her death the same passed to him, as survivor, and that consequently he could not maintain the action as executor. Upon the close of the plaintiff’s evidence the court held that the evidence established that they were copartners and that the property was copartnership property, and that the defendant’s motion for a nonsuit should be granted

The question thus presented is as to whether or not a husband and wife can legally enter into a business copartnership. This question has recently received consideration in the case of Fairlee v. Bloomingdale (67 How., 292), in which it was held that such copartnership is not authorized by the statute, and that the common-law disability of husband and wife to so contract together still exists. It was again considered in the case of Graff v. Kinney (1 How. [N. S.], 59), in which the opposite result was readied. And, again, in the case of Noel v. Kinney (31 Alb. L. J., 328), in which the decision in the case of Graff v. Kinney was criticised and disagreed with, and the decision in the former case concurred in. So far as we have been able to discover, the precise question has not been passed upon in the General Term or the Court of Appeals.

In the case of Nash v. Mitchell (71 N. Y., 199, 204), AlleN, J., in delivering the opinion of the court, says: “ The disabilities of a married woman are general and exist at common law ; the capabilities are created by statute and are few in number and exceptional. It is for him who asserts the validity of a -contract of a feme eovert, by evidence to bring it within the exceptions.” In the case of Bertles v. Nunan (92 N. Y., 152, 160), Eakl, J., in delivering the opinion of the court, says : “ The common-law incidents of marriage are swept away only by express enactments. The ability of the wife to mate contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy,” * * * and “that the common-law disability of husband and wife, growing out of their unity of person to convey to each other still existed. It is believed also that the common-law rule as to the liability of the husband for the torts and crimes of his wife are still substantially in force.” In this case it was held that under a conveyance to a husband and wife jointly, they take not as tenants in common, or joint tenants, but as tenants by the entirety, and upon the death of either the survivor takes the whole estate. In the case of Coleman v. Burr (93 N. Y., 17), it was held that the statute authorizing a married woman to carry on a trade or business and to perform any labor or services on her sole and separate account, did not absolve her from the duty to render to her husband such services in his household as are commonly expected of a married woman in her station in life. In the case of Johnson v. Rogers (35 Hun, 267; 20 Weekly Digest, 568), this court has held that a deed made by a husband to his wife directly, for a mere nominal consideration, passes no legal title.

At common law, by reason of the unity of husband and wife, they cannot contract together a business copartnership. This disability still continues unless it has been changed by the statute. The question, therefore, becomes one of construction of the statutes. And in such construction we must not forget the rule that statutes in derogation of the common law must be strictly construed. The statute in question is as follows: A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property and may be used or invested by her in her own name.” (Sec. 2, chap. 90, Laws of 1860.) It is claimed that the phrase on her sole and separate account,” does not limit or qualify the words trade or business,” and that this is apparent from the punctuation of the sentence. This, however, does not appear to us to be the construction of the section intended. In construing statutes it is not a safe rule to place too much reliance upon the punctuation. The words “ trade or business,” are connected with the words “ labor and services ” by the conjunction “ and,” and it appears to ns that the phrase “ on her sole and separate account ” refers bach and qualifies the words “ trade or business,” as well as the words “labor or services.” It reads, “a married woman may carry on any trade or business and perform any labor or services on her sole and separate account.” In other words, a married woman may carry on any trade or business on her sole and separate account. That this is the meaning intended would seem to follow from that which precedes and follows the sentence. The section preceding the one under consideration provides that the property which a married woman acquires by her trade, business, labor or services, carried, on or performed on her sole and separate account,” etc., shall be and remain her sole and separate property. The phrase “ on her sole and separate account,” in this section, unquestionably refers bach and limits or qualifies the words, trade, business, labor or services,” and this is evident from the phrase carried on or performed.” The words “ carried on ” refer to her trade or business, and the word “ perform ” to her labor or services. To the same offect is the concluding portion of the sentence which follows that under consideration.

If we are correct in this reading of the section, it follows that a married woman cannot enter into a copartnership with her husband and carry on a trade or business.

Again, it is argued that it has been held that a married woman may engage in a copartnership business with a person other than her husband, and that this construction of the section would he in conflict with such decisions. This, we do not think, would necessarily follow. The married woman was disqualified from engaging in business by reason of the existence of her husband. By her marriage her person was united with that 'of her husband, and they thereafter were regarded in law as one person. She could not contract separate and distinct from him. As soon as the husband died her disability was removed. In using the words, “ sole and separate,” in the statute under consideration, the legislature doubtless had in mind the . husband, and these words were doubtless intended to refer to him and to him only. The legislature, by chapter 381 of the Laws of 1884, has now removed the disability of a married woman to contract, and she may now contract to the same extent and with like effect and in the same form as if unmarried; but it is expressly enacted that this act shall not affect or apply to any contract that shall be made between husband and wife, thus recognizing and continuing the construction that we have given.

On the trial, the plaintiff was sworn as a witness in his own behalf and gave evidence as to the articles taken, their value, etc. On the cross-examination by the defendant, he testified that Mary J. Kaufman and himself were members of the firm, and that the goods were a part of the stock in trade. On the redirect-examination he was asked the following question : “You say you were a member of the firm: state what the agreement was between you and your wife in relation to your becoming a member of the firm ? ” This was objected to, and the plaintiff’s counsel offered to show the relation existing between Mary J. Kaufman and the witness at the time his name was used in the firm, based upon an agreement made at that time between them, in substance as follows: that Mary J. Kaufman requested the witness to permit her to use his name as the company, and agreed to remunerate him for its use ; that he was not to become a copartner as between themselves, or have any interest in the copartnership property. This was objected to, and the objection sustained, and exception taken by the plaintiff’s counsel. We are of tbe opinion that this was error. Tbe evidence offered was proper in rebuttal, as tending to explain or disprove that drawn out upon tbe cross-examination. Tbe plaintiff bad tbe right to show that tbe agreement actually made between tbe witness and Mary J. Kaufman did not, in law, constitute a copartnership.

Judgment reversed, and a new trial ordered, with costs to abide tbe event.

SMith, P. J., BaRKbe and Bradley, JJ., concurred.

Judgment and order reversed, and anew trial ordered, with costs to abide tbe event.