text:
    The People ex rel. James Fitzgibbons, Resp’t, v. Trustees of the New York and Brooklyn Bridge, App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 4, 1896.)

    1. Certiorari—Corporation—Misnomer.
    Where the writ of ceriiorwri names “The Trustees of the New York and - Brooklyn Bridge,”as “The Board of Trustees of the New York and Brooklyn Bridge,” it is not a fatal misnomer and will not defeat the proceeding, where there is no doubt as to the identity of the corporation.
    2. Brooklyn Bridge—Policemen—-Removal.
    Section 1, chapter 710 of 1894 relates merely to procedure and does not' preclude the courts from reviewing a decision of tire trustees, discharging a • • policeman from determining the sufficiency of the evidence.
    Appeal from an order, denying a motion for writ superseding the writ of certiorari.
    James C. Bergen, for app’lt; Louis J. Grant, for resp’t.
   BROWN, P. J.

—The relator, for eleven years preceding his discharge, bad been a policeman upon the' New York and Brooklyn bridge. On-January 7, 1895, he was tried by the trustees of said bridge upon charges preferred against him, and subsequently was adjudged to be guilty, and was dismissed from the force. Thereafter a writ of certiorari,was, upon his petition, issued out of the supreme court, directed to “The Board of Trustees of the New York and Brooklyn Bridge,” commanding them to make return to the court of all their acts and proceedings relating to such discharge. The appellant thereafter moved at the special term for a writ superseding said writ of certiorari, which motion having been denied, appeal was taken to this court.

The appellant asks for a reversal of the order, and that its motion be granted upon two grounds: (1) That the writ of certiorari is improperly addressed ; (2) that the dismissal of the petitioner was a matter resting exclusively in the judgment and discretion of the trustees of the bridge, and is not subject to the review of the'eourt.

• Section 2129 of the Code of Civil Procedure provides that where the writ is brought “to review the determination of a" board or body other than a court, if an action would lie against the board or bodv in its associate or official name, it must be directed to the board or body- by that name; otherwise it must be directed to the members by their names.” The trustees of the bridge are by statute created a corporation, under the corporate name of “The Trustees of the New York and Brooklyn Bridge,” arid are authorized to sue and defend actions and proceedings in their corporate name. Laws 1891, chap. 128, § 7. The writ is directed to “The Board of Trustees of the New York and Brooklyn Bridge.” We think this defect is not such a misnomer as will defeat the proceed! no-. The corporate name of the appellant is stated with sufficient°accuraoy, and there is no doubt 'as to the identity of the corporation. In the petition the corporate name is correctly stated, and the addition of the words “ The Board of ” in the writ is, we think, an immaterial matter. The case of the People v. Board of Com’rs of Public Parks, 97 N.Y. 67, cited by the appellant, does not sustain its point. The park board was not a corporation, but a department of the city government; and therefore, in accordance with the express terms of the provision of the Code, the writ should have been directed to the members of the board by their names, and so the court held. In this case, however, the appellant is a corporation, and the writ is addressed to it as such; and the mistake in the name is not one that raises any doubt as to the identity of the corporation proceeded against.

Upon the second proposition presented to us, we are of the opinion that the determination sought to be reviewed was a judicial one. By statute, it is made "the duty of the appellant to appoint an adequate police force, and the government and discipline of. such force is declared to be such as the trustees may, by rules and regulations, prescribe; but no policeman is to he removed except after the public examination of written charges preferred against him, and such examination must be had upon written notice to the accused, and in accordance with the rules and regulations prescribed by the trustees. Laws 1894, chap. 710, § 1. The provision as to rules and regulations of the hearing relates to procedure only. There is nothing in the statute making the decision of the trustees upon the testimony given in support of the charges final and conclusive, and we think their decision upon such matters is subject to review by the court. The petitioner-does not contend that he was deprived of any right so far as the form or manner of the proceeding against him was concerned. The allegation of his petition, in substance, is that the testimony given did not sustain the conclusion that he was guilty of the charges made. The determination thus challenged was a- judicial one, and the petitioner is entitled to have it reviewed by the qourt.

The order must be affirmed, with $10 costs and disbursements.

All concur.


source: Caselaw Access Project

author: BARTLETT, J.

license: Public Domain

text:
    Michael Devine, as Administrator, etc., App’lt, v. Brooklyn Heights Railroad Company, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Negligence—Electric railroad company.
    An electric railroad company is liable for injuries by its wires, whether , the street has been opened liy legal proceedings or not, in case it is publicly used.
    2. Same.
    To put a cable or wire in the bed of a gutter on a public street for a distance of thirty feet or more and raise it suddenly, without taking any means to notify persons on the street of its presence or the intention to lift it, is clearly negligent as to any one lawfully upon the street, who is injured thereby while in the exercise of due care himself. So held, where, while an electric railroad company was raising on poles a feed wire, a small hoy, starting to cross the street, steeped across the wire, which lay in the gutter, just as it was suddenly, without any notice of its presence or intention to lift it, raised, with "such force that the boy was thrown . many feet in the air.

      Appeal from a judgment dismissing the complaint, at close of plaintiff’s evidence.
    Almet F. Jenks, for app’lt; S. Stewart Whitehouse, for resp’t.
   BARTLETT, J.

—The complaint in this action alleges, and the answer admits, that on the 19 th day of July, 1893, the defendant corporation was constructing an electrical railroad through and along Second avenue, in the city of Brooklyn, and was engaged in stringing or hanging its cables or feed wires on iron posts erected on said avenue. The complaint further alleges that on that day, while James Devine, the plaintiff’s intestate, was crossing Second avenue, the defendant, its agents and servants, conducted themselves so negligently that one of the cables or feed wires which they were at time erecting, stringing, or hanging caught said James Devine, and carried him upward into the air a distance of about twenty feet, from which height he fell to the ground with such violence as to suffer injuries from which he died. This allegation of negligence was denied by the answer. The plaintiff gave evidence tending to support it, and, at the close of his case, counsel for the defendant moved for a dismissal, on two grounds: First, that the proofs failed to show any negligence bn the part of the defendant or absence of contributory negligence on the part of the lad who was killed ; and, second, that the place where the accident occurred had not been shown to be a public street. The court granted the motion, not on the ground that the place was not a public street, but because, in the opinion of the learned trial judge, the plaintiff had failed to prove any negligence on the part of the defendant.

The accident happened on Second avenue, between Thirty-fifth and Thirty-sixth streets. The evidence showed that, at the time of the accident, Second avenue from Twenty-eighth to Sixty-fifth streets, was an open thoroughfare; that it was paved, curbed, and flagged; and that it was used as a public street by the people living in that district and the general public. In view of these facts, it was wholly immaterial, so far as the plaintiff’s cause of action was concerned, whether that particular part of the avenue in which the accident happened had actually been opened by legal proceedings instituted by the municipal authorities. Second avenue, at that point, was in public use as a public street, and the plaintiff's intestate had just as much right there as the agents of the defendant. The trial court was right, therefore, in refusing to base the dismissal of the complaint on this ground.

But we do not think the complaint should have been dismissed at all.. The testimony of those who witnessed the accident, if believed by a jury, would amply warrant the inference that the agents of the defendant did their work in a careless and negligent manner. They were engaged in hoisting an electric cable into position, on poles along the side of the street. Several hundred feet of this cable had been hung on the crossbars at the top of the poles, and allowed to drop down in loops. To get the cable into position, it was then hauled taut by means of a team at one end. The loop between Thirty-fifth and Thirty-sixth streets came down to the ground, and lay in the gutter for a distance of about thirty feet While in this position, a group of lads, among whom was the plaintiff’s intestate, a boy eight years of age, started to cross the street. As James Devine stepped across the wire, the men engaged in stringing the cable gave the signal for the team, to go ahead. The cable, as it was made taut, rose in the air, «catching the lad between the legs, and tossing him up a distance of twenty or twenty-five feet. The fall fractured his skull, and he died five days afterwards.

In granting the motion to dismiss the complaint, the learned trial judge seems to have acted upon the view that,the cable was not in a place where it would be likely to entangle horses, vehicles, or persons, and that it was raised in such a slow manner that no negligence could be predicated of the way in which the work was done. .“Any person passing over it,” he said, “would know it was not a thing that shoots in the air, or was propelled in such a way as to strike persons suddenly, and injure them.” It seems to us, "however, that a cable or wire, lying in the bed of a gutter, on a public street, for a distance of thirty feet or more, is something which is extremely likely, in the ordinary course of things, to interfere with the free use of the street by persons entitled to use it, particularly when it is liable at any instant to be raised from its position to a height of many feet above the ground. To put a ■sable or wire in such a place, aftd raise it suddenly, without taking any means to notify persons on the street of its presence or the intention to lift it, would clearly be negligent as to any one lawfully upon the street, and who was injured thereby, while in the exei'cise of due care himself. The assumption that the movement of this particular cable, on this particular occasion, was slow, is directly at variance with the proof. If the cable bad moved ■slowly, it would be utterly impossible, in the nature of things, that the deceased lad should have been thrown twenty feet up in the air. The eyewitnesses of the accident agree upon this point, and, for the purposes of the present appeal, their testimony must be taken as true. The inference to be drawn from it is that the motion of the cable, instead of being moderate, was more like that of a bow string when an arrow is discharged.

We are clear that there was a question for the jury in this case. The judgment appealed from must be reversed, and a new trial granted; costs to abide the event.

All concur.


author: PER CURIAM.

text:
    William H. Schecker, App’lt, v. Kate T. Woolsey et al., Resp’ts.

      (Supreme Court. Appellate Division, Second Department,

      Filed Feb’y 11, 1896.)

    I. Records—Removal from files.
    Where, in an action to declare void a conveyance by a judgment debtor as to plaintiff’s judgment, there is a stipulation for judgment in plaintiff’s favor, unless the debtor makes a second payment by a specified time, a default of payment and a judgment as stipulated, and the debtor after-wards pays the debt and an order is made discontinuing the action and canceling the lis pendens, it is .error to order all the papers in the case ta he delivered to the grantee, on her application and affidavit that such stipulation was unauthorized by her and tended to discredit her defense, where they contained no aspersion on tier save that which it was necessary to charge in the complaint and which did not necessarily affect her character.
    3. JUDSMENT— COBRECTTOTT.
    Where an order, allowing defendant to remove all the papers from the. files, does not recite plaintiff's opposing affidavit, it should be resettled.
    8. Same.
    The granting of a motion made by the grantee in such case, to reform the original order byreciting in it plaintiff’s affidavit and by incorporating, in it a direction that the affidavit should not he filed, is error.
    Action by William H. Schecker against Kate T. Woolsey and Edward J. Woolsey to declare a conveyance from defendant. Edward to defendant Kate void as to a, judgment in favor of plaintiff, and against defendant Edward J. Woolsey, in which there was a judgment for plaintiff. From three certain subsequent orders plaintiff appeals.
   PER CURIAM.

—The three orders of the special term from-which the appeals are taken were made in a single application. The plaintiff, a judgment creditor of the defendant Edward J. Woolsey, brought this action to declare a conveyance from that defendant to the defendant Kate T. Woolsey void as against his judgment. When the cause was brought on for trial, the defendant’s counsel entered into a stipulation for judgment in plaintiff’s favor, unless the defendant made a certain payment by a specified time. Default having been made in such payment, a decision was rendered on the stipulation, and the decision and the stipulation filed in the office of the clerk. Subsequently the defendant satisfied plaintiff’s claim, and an order was made discontinuing the action, and’canceling the lis pendens. Thereupon, the defendant, on-an affidavit that the stipulation was unauthorized by her, and tended to. cast discredit on her defense, applied for an order directing that all the papers in the action on file in the clerk’s office betaken therefrom, and be delivered to her. This application was granted against the opposition of the plaintiff, and is the first order appealed from. This order did not recite the plaintiff’s opposing affidavit. So the plaintiff moved to resettle it in this respect. This motion was denied, and the order denying the motion is the second order appealed from. After this the defendant moved to reform the original order by reciting it in the plaintiff’s affidavit, and also by incorporating therein a direction that the affidavit should not be filed. The order granting this motion is the third order appealed from.

Assuming the power of the court to remove its records from, the clerk’s office, for the purpose of destruction, it is apparent that, it is a power to be exercised with the greatest caution, and only in the most exceptional cases. Of course, affidavits- and documents not properly part of the records of the court, and filed by mistake, would properly be directed to be removed. So, also, the1 court should not suffer its records to be used to publish libels, and scandulous accusations wholly irrevelant to the cause should be suppressed. But no such case is presented here. The documents sought to be removed were part of the regular records made in the action. They contained no aspersion on the defendant, save that which it was necessary to charge in the complaint, and that not necessarily affecting her character. The reason assigned as a ground for the removal is too trivial to justify discussion. But the dominant consideration is that the papers were entirely germane to the litigation, and contained nothing irrevelant thereto. In such a case the records should not be destroyed.

The three orders appealed from should be reversed, with $10 costs and disbursements, and the original motion denied, with $10 costs.


author: RUMSEY, J.

text:
    Ida M. Newcombe, as executrix, etc., Resp’t, v. William J. Fox, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr’y 7, 1896.)

    1. Bills and notes—Presumption.
    Upon the production of a note by the plaintiff, there arises a presumption that he is the owner of it.
    2. Same.
    From the mere fact of a delay to sue a strictly legal claim where the statute of limitations has not run against it, no presumption of payment can he raised.
    8. Same—Evidence.
    In an action on a note, proof that the maker, in a conversation with one of the payees, claimed to have paid it and to have a receipt therefor, which he did not produce when requested to do so, is not competent to establish payment.
    4. Same.
    The evidence, in this case, was held insufficient to prove payment.
    5. Appeal—Harmless error.
    Where the evidence given to prove a defense is entirely insufficient, a new trial will not he granted for errors in the admission of evidence oifered merely to rebut such defense.
    Appeal from a judgment in favor of plaintiff on a verdict or» dered by the court.
    M. A. Quinlan, for app’lt; W. H. Hamilton, for resp’t.
   RUMSEY, J.

—This action is upon a promissory note, and the sole defense was payment. The question presented on the merits of this appeal is only whether it was error to order a verdict for the plaintiff. The note was dated November 1, 1886, payable on demand to Newcombe & Cardozo, and was produced by plaintiff. When that was done, there arose a presumption that she was the owner of it. Stephens v. McNeill, 26 Barb. 657.

It appears that suit was brought on the note on the 31st day of October, 1892, just before it would have been barred by the statute of limitations, and it is insisted that the delay to sue raised a presumption which, taken with the other facts, might be considered as tending to show that the note was paid. It is doubtless true that the fact of long delay in suing upon a claim is proper to be considered in some cases where the defense is payment. But, from the mere fact of delay to sue a strictly legal claim where the statute of limitations has not run against it, no presumption ■of payment can be raised. The evidence relied on to show payment here is that of the witness Toner. The testimony of Cardozo contains nothing that bears upon the question except that, after this suit was brought, he had a talk with Fox, in which Fox claimed that he had paid the note, and had a receipt, 'but he did not produce it when requested to do so. But that testimony was not competent, and cannot be considered. The testimony of Toner is that in July, 1888, he wrote a letter to Fox, which, being produced, seems to have no relation to this matter. He says, however, that it referred to this note. He says that shortly after Newcornbe and Fox came out of Newcombe’s room, Newcornbe said that everything was arranged, that it was all right, .and Fox asked, “ When can I get the note? ’’ to which Newcornbe replied that he would look for it, and send it to him. The witness further said that he thought, but was not positive, that Newcornbe told him to look up this note, and send it to Fox. It appeared, however, that, at the time of this talk between Newcornbe and Fox, there were two other notes outstanding given by Fox to the firm, each of which was due, and the witness was unable to say to which of the three notes the parties referred in the talk given above. There was no further evidence of payment. This, as we think, was not enough to have unabled the jury to say that the note in suit was paid, and for that reason the court was correct in not submitting to them that question.

It is claimed by the defendant that the court erred in overruling the objection to the bill and letter sent by the firm of New•coinbe & Cardozo to Fox in 1889. Whether it was error to receive that evidence need not be decided. The evidence was offered by the plaintiff upon the question of payment. But whether ■or not she offered evidence on that issue made no difference. The defendant had failed to prove it, and the court was bound to so hold. The proof offered to show that the note was still unpaid was entirely unnecessary, because the defendant had failed in' his effort to show that it was paid. For that reason the evidence referred to could not have changed this result, and the admission of the evidence did no harm. Where the evidence given to prove a ■defense is entirely insufficient, a new trial will not be granted for errors in the admission of evidence offered merely to rebut such defense. Bronson v. Tuthill, 1 Abb. Dec. 206.

The judgment should be affirmed, with costs.

All concur.


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

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

      1. Appeal—What to consider. ■
    Where no order was ever made upon the motion for a new trial, the appellate court is not in a position to review the facts, and the appeal must he sustained, if at all, upon the exceptions taken at the trial.
    3. Presumption—Corporations.
    There is no presumption either of fact or of law, that a corporation is not making a profit, merely because it does not declare a dividend,
    3. Evidence—Corporation—Insolvency,
    In an action for false representations in the sale of stock, a paper purporting to have been a statement of the business of the company, in the absence of proof that it was taken from the books of the company, that it was a due résumé of the affairs of the. company, or that either of the defendants had ever seen it or knew anything about it, is inadmissible to show insolvency at the date of the sale.
    Appeal from a judgment, entered, on a verdict in favor of plaintiff.
    Thomas Mc Adam, for app’lts; Thomas Bracken, for resp’t.
   RUMSEY, J.

—This was an action to recover damages alleged to have been sustained by the plaintiff because of false representations made to him by the defendants as to the value of certain stock which he was induced to purchase, and which proved to be worthless. The action has been tried once before, and a verdict rendered for the plaintiff. The judgment entered upon that verdict was reversed by the general term, for the reason that there was no evidence to sustain it. Hatch v. Spooner, 37 St. Rep. 151. The appeal in that case was taken from an order denying a. new trial, as well as from the'judgment, and therefore the court was at ‘ liberty to review the facts. As the case is now presented, no order was ever made upon the motion for a new trial. We are therefore not in a position to review the facts, and the appeal must be sustained, if at all, upon the exceptions taken at the trial. Code Civ. Proc. § 1346; Railroad Co. v. Ebling, 100 N. Y. 98. These exceptions, however, clearly raise the question whether there was any evidence upon which it was proper to submit the case to the jury, because, at the close of the plaintiff’s evidence, he moved to dismiss the complaint upon the ground, among others, that there was no evidence as to the truth or falsity of the statements, or that the defendants knew that they were false. This motion was denied, and the. defendants excepted. By this motion the question was raised whether the plaintiff had given evidence from which the jury were at liberty to find the necessary facts to establish a cause of action. These facts were, among others, that the representations made were false, and were known to be false by the defendants at the time - they were made. The representation was,' substantially, that the company was making ten per cont. profit. That is the only fact stated upon which a verdict for the plaintiff could have been based. To establish the falsity of this representation the plaintiff proved, in the first place, that no dividend was ever paid by the company. This, standing by itself, was of comparatively slight importance. There is-no presumption, either of fact or of law, that a corporation is not making a profit, merely because it does not desire a dividend. Ordinarily it may be that the corporation which is making money will declare dividends, but many reasons might be suggested why that should not be done, and therefore no presumption can arise, because it is not doné, that there was no profit out of which a dividend might be declared.

The .plaintiff, however, sought to supplement this proof by showing that the company was in fact insolvent at the time that these representations were made. To prove that, he offered in evidence a statement purporting to have been a statement of the business of the company for the year ending May 1, 1884. It appeared that, during that year, the defendants had been directors of the company, Edward Spooner being president, and Ebenezer Spooner being actively engaged in the management of its affairs. The plaintiff identified the statement, when it was offered, as the first statement which ever had been presented to him. There was no proof, however, from which it could have been found that the statement was taken from the books of the company, that it was a. true resume of the affairs of the company, or that either of the defendants had ever.seen-it or knew anything about it When the. statement was offered, its reception was objected to, and the defendants excepted to the ruling receiving it in evidence. Had it been received without objection, it was entirely immaterial as. against the defendants. So far as they were concerned, it proved nothing.

Upon the other trial, the treasurer of the company testified that, the statement was a correct statement of the affairs of the company, •as shown by the books, but upon this trial no such evidence was-given. For this reason, the statement, when admitted, had no-probative force, as against these defendants. There was, then, no testimony whatever competent as against the defendants, from which the jury could have found, either that the representations were false, or that the defendants were aware of their falsity at the time they made them; and without such proof the judgment cannot be sustained. The defendants excepted to the reception of this statement in evidence, because it was incompetent and immaterial. It is plain, from what has been said above, that this exception was well taken, and, standing by itself, it would be sufficient, to- require the reversal of this judgment.

For the reasons above given, without considering any other of the grounds of error relied upon by the defendants, the judgment must be reversed, and a new trial granted,'with costs to the appellants to abide the évent of the action.

All concur.


author: BARRETT, J.

text:
    People ex rel. Peter Seery, App’lt, v. O. H. Lagrange et al., as Fire Commissioners, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Municipal corporation—Fire board—Inspector.
    - A removal of an inspector of combustibles by the fire board for issuing permits for the sale of fireworks in violation of the rules of the board will not be disturbed, where it appears that such inspector, though he acted on reports of surveyors appointed hy the board, negligently accepted meager and insufficient reports and issued permits for tenement houses and other houses, which were probably occupied by persons other than the applicants.
    Certiorari to review the action of the board of fire commissioners of the city of New York, discharging relator from the position of inspector of combustibles in the. fire department of the city of New York.
    Roswell D. Hatch, for relator; William L. Findley, for resp’ts.
   BARRETT, J.

—In the present case the forms of law were fully complied with by the commissioners. Mr. Seery was duly informed of the cause of his proposed removal, and was afforded a proper opportunity for explanation. The question, therefore, is whether the cause assigned was substantial People v. Thompson, 94 N. Y. 451. Mr. Seery was the head of the bureau of combus tibles, in the fire department of the city of New York, and his official title was “ Inspector of Combustibles.” Under the rules of the department, this inspector was directly tesponsible for the proper conduct and management of his bureau. He was given the control and direction of all the clerks and other employes assigned to his bureau; and he was charged with the prompt execution and enforcement of all the laws regulating the storage, sale, handling, and transportation of combustibles and explosive material, as well as the laws and ordinances enacted for the prevention of fires. His duties were thus of an exceedingly important character. The charge against Mr. Seery was that he issued permits for the sale of fireworks in violation of the rules of the board. These rules provide that no permit shall be issued for a building in which any person other than the applicant, or his family, resides, and, further, that no permit shall be issued for any frame or wooden building. It is unquestioned that these rules were repeatedly violated, and the relator defends himself mainly upon the plea that he was not responsible for such violations, for the reason , that he invariably acted upon the reports of surveyors who were appointed and removed by the commissioners themselves and, not by him. He thus seeks to bring his case within the rule laid down in People v. Campbell, 82 N. Y. 249. The distinction between the cases is, however, plain. Mr. Seery was held responsible for his own negligence, not that of the surveyors. His negligence consisted in accepting from these surveyors reports of the most meager and insufficient character. It consisted, too, in not observing that very many of the houses thus favorably reported were probably occupied by persons other than the applicants or their families. -He repeatedly allowed permits to be issued upon reports which contained no special information upon this head. The fact that many of these buildings were tenement houses. The relator thus suffered the rules of the board to be violated. He was directly responsible for the conduct of his bureau, and yet he acted as though his function in the matters in question was purely formal. He seemed to think that his responsibility was confined to the acceptance without question of the surveyors’ conclusions. The least diligence must have obviated the difficulty. There is nothing in the case, therefore, to warrant the ■ court in disturbing the conclusion of the commissioners. With the punishment awarded, we have nothing to do. The commissioners were the sole judges upon that head. If they deemed it wisest to intrust the inauguration of a better system to more efficient hands, that was within their province. Mr. Seery was not removed for dishonesty, nor was there a suggestion made against his integrity. But he had" for -years permitted-a lax system to prevail in the bureau, and it was nof unnatural that the commissioners, in eradicating the system,' should remove the person who was, in the 'fnain, responsible for it.

The writ should be dismissed, and the action of the board of fire commissioners affirmed, but without costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Morris Goldschmidt, as Administrator, etc., Resp’t, v. Metropolitan Cross-Town Railway Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Negligence—Pboof.
    The evidence, in this action, which was brought to recover for the killing of a child, on a street car track, was held insufficient to warrant submission of the company’s negligence to the jury.
    Appeal from a judgment for plaintiff, and from an order denying a motion for a new trial made on the minutes.
    Mr. Kerr, for app’lt; C. Steckler, for resp’t.
   VAN BRUNT, P. J.

—This action was brought by the plaintiff for the benefit of the next of kin of Nathan Goldschmidt1, deceased, to recover damages for injuries resulting in the death of said Nathan Goldschmidt, alleged to have been caused by deceased being run over by one of the cars of*the defendant on Delancey street, in the city of New York, near- the intersection of that street with Allen street. Upon the trial of the action, evidence was given upon the part of the plaintiff tending to show negligence of the defendant, and, in behalf of the defendant, evidence tending to show that the accident happened in a manner entirely different from that in which it -was claimed to have occurred by the witnesses of the plaintiff. At the close of the plaintiff’s case, and after all the testimony had been taken, a, motion was made to dismiss the complaint, upon the ground, among others, that no negligence upon the part of the driver of the defendant’s car had been shown. These questions having been submitted to the jury, a motion was made upon the minutes for anew trial; and from the judgment thereupon entered, and from the order denying the motion for a new trial, this appeal is taken.

Upon an examination of the testimony in this action, it will be seen that the witnesses for the plaintiff testified, in the first place, to an improbable story, and, in the next place, contradicted themselves and each other in many of the essential points of the case; while, upon the part of the defendant, witnesses, the most of whom are clearly entitled to credit, unconnected with the road, testified to a consistent state of facts, which showed that the driver of the car in question was not guilty of any negligence in reference to the happening of the accident.

Four witnesses were examined upon the part of the plaintiff,—Jacobs, Kaloher, Goldman, and Rayrnann. Jacobs starts out with a statement in regard to the direction in which the child was going, wherein he contradicts all the other witnesses who were examined in the case. He states that the child was going from the south side of the street to the north side, whereas all the other witnesses agree that the child was going in the opposite direction. This witness also testified that the car was going at full speed,, and that it did not slow up for any Second avenue car; that he-did not see any Second avenue car there; that it was going eight miles an hour, and then that it was going eight or five or three miles an hour; he could not tell for sure. He also stated that he saw the child when the car was thirty or thirty-five feet away, crossing the south track, and the first horse knocked down the child, and he fell down, and the first outside wheel ran over his-head, and the body was lying outside the track, and the head was lying inside the track. Thus, according to his story, the-child, before it was run over, must have been knocked completely across the track. This witness states that he was upon the front platform, and that he could not tell whether there were any more persons on the platform or not; and, in another place, that the first that he knew about it was when he felt the jumping of the car as it ran over the head of the child. He also states that, after running over the child, the driver of the car drove to the other side of the street, and then ran away, which upon his own confession, and upon the other direct proof in the case, was absolutely false, and nothing but an invention of his own. The next witness upon the part of the plaintiff was a man named Kalcher. He claimed that he saw the child run over upon the day in question ; that it was around upon time, and that the car was going west; that the child was run over at the northeast corner of Delancey and Allen streets ; that, when he saw the child, it was in the act of coming down the street, between the gutter and the track, which ispace amounted to about four feet; that the child was coming from the north, and going south; and that, when he first saw the child in that position, the heads of the horses attached to the car that ran over the child were about thirty feet away; that he did not see the child knocked down; that he first saw the child lying on the track; its head was lying on-the track ; the head of the child was lying on the rail nearest the north side of the street. The witness further testified that he did not notice the child knocked down ; that the first he saw was the child lying with its head between the two wheels of the ear, and that he saw the hind wheel going over it. The witness upon direct examination, testified that the car was going very fast, seven or eight miles an hour. But, upon cross-examination he testified that he saw the Second avenue' car there, and that the car which ran over the child slowed up for the Second avenue car to pass, coming nearly tó a walk. The next witness examined upon the part of the plaintiff was a peddler, named Goldman. He testified that he was going north on Allen street, and saw the child, who. was coming in an opposite direction ; that he heard a scream, and saw the' child standing on the track; that at this time the horses’ heads were away from the child about the third house from the corner; that the car was going fast, and, when the child screamed, the witness ran, but the child was already run over ; that the people were shrieking out before the child was touched by the horses or the car; that he did not notice whether the driver did anything to stop the speed of his horses1; and that the car did not stop after running over the child until it got to the other side of the street. He further testified that he screamed to the driver; that the driver was holding the horses, but the horses were running; and that the driver did nothing at all when he called to him ; and that the driver’s face was turned towards the people on the platform, there being four or five of them, and he was talking to them. The next witness examined upon the part of the plaintiff was a man by the name of Eaymann. He stated that he saw the child before it was knocked down, crossing the street; and that, when it got on the rail crossing the track, the heads of the horses were from thirty to thirty-five feet away, and the driver was going at a fast rate, much faster than cars usually go; and that he did not see any Second avenue car there. When asked, “How far from the corner of "Allen were you when you first saw the child ?” he answered: “ The car had passed there. I just seen where the horses struck the child.” It is to be observed that the child was run over before the car had crossed Allen street. The witness repeats: This car that I have reference to, this company’s car, bad just passed me. It had crossed Allen street then. It j ust struck the child when I seen it. The car was going the same direction I was going.” This witness admitted that on the 19th of October, a few days after the accident, he had made a statement that he did not see how the boy could get under the wheel, and did not know whether he was knocked down or fell under the wheel;, that he did not see him under the car; that he was looking south at the time ; and that, the first that he saw, the boy was in front of the rear wheel of the can Upon being interrogated in regard to this statement, he said that he made the statement to the man who questioned him merely to please him ; that he did not always tell the truth, 'but only told it when he was under oath ; that he had told two opposite stories in the case, and one of them was false. He says : “I told the false story because I told him what I thought about it." The witness further said in answer to the question, “What was your object in telling a story about it?” “Well, I knew the company wanted to beat the case, and I stuck to the poor man. I am a working man myself. That is why I changed it."

Upon the part of the defendant, the driver of the car was examined, and he testified that he was crossing Allen street when the police officer, who was also examined as a witness, raised his hand, and told him to stop, that there was somebody run over. The driver testified that he felt a jar in running over the child, but did not see him at all until he went back and that there was no one upon the front platform with him. He further testified that the car was not going fast, but had slowed .up fifteen or twenty feet from the crossing to let a Second avenue car pass. Another witness was called upon the part of the defendant, named Lee. He testified that the boy was going down Allen street towards Eivington,—crossing towards Broome; that the car which ran over the boy came almost to a full stop to let the Second avenue oar pass ; and that, just as the car started, the hoy ran to the curb, stepped down, and then fell under the wheels of the car, only the hind wheel of the car going over his head, A lady by the name of Mrs. Barclay, who was a passenger on the car, was also examined as a witness for the- defendant. She testified that the car was not going fast, but, on the contrary, that it was going very slowly; that it had slowed up to let the Second avenue car pass, and that the first she knew about the accident was a thud ; that she thought the wheel went over a stone ; that there was only one thud, and it was at the hind wheel, just on the side of her, the witness having testified that she sat forward of the hind wheel. The witness further testified that, after she heard this thud in the ° rear of the car, she stood up with the rest, and then saw the boy lying on the track, with his head facing the car; that at this time the whole of the car had passed away from where the boy was lying. The next witness examined upon the part of the defendant was a passenger named Whitworth, who was an indexer in the Equitable Gaslight Company. He hoarded the-car at Pitt and Delancey streets, and was sitting in the corner, engaged in counting up the indexes in his book. He noticed that the car, on coming near Allen street, was going slowly, ■which annoyed him, on account of his wanting to make up time to get his lunch aud get back to the office. He testified that the first he knew of the accident was that he felt a jolt of the car, and the book in his lap fell upon the floor ; that he got up to see the cause of the jolt, and, looking back on the track, he saw a bundle, and, on looking move closely, he saw it was a child, by seeing the feet. He further testified that he could locate that jolt; that there was one distinct jolt, and only one ; that he was sitting in the rear of the car, and the jolt was in the rear of the car; and that the accident occurred between 12:30 and 1 o’clock. A policeman named McArdle was also examined, and testified that he was in the neighborhood of Allen and Delancey streets at the time of the accident; that he saw the Delancey street car, which was proceeding slowly; and that the Second avenue car passed in front of it. While the witness was waiting for the car, he spoke to the witness Lee, whom he knew; that, as the car was abreast of him, he caught hold of the railing, and stepped on the front platform, and said: “ Driver, hold up ;• you have run over a child.” “ He said: ‘ No, sir.’ I said: ‘ Yes; stop.’ ” The driver then got off the car, and went with the policeman towards where the child was. The witness further testified that there was nobody on the front platform at any time since he saw the car, and he saw the car before the happening of the accident. He further testified that he did not see the boy until he had been run over.

Upon a consideration of this testimony, it is evident that there was an attempt upon the part of the witnesses for the plaintiff to make it appear that the car was going at a high rate of speed, when it is manifest from their own cross-examination, and from, the testimony of one of their number, besides that of the witnesses upon the part of the defendant, that the car was not going fast, but was going slowly, having slowed up in order to let the Second avenue car pass. We further find, upon considering the testimony of the plaintiff’s witnesses, that they told stories which are not consistent with each other, and which in some of their features present physical impossibilities. There does not seem to be any point in respect to the method of the happening of this accident in which they agree. One states that he was alone upon the front platform, and another that he saw five or six people on the front platform, to whom the driver was talking; and each witness testified in some part of his examination that the first thing he knew about the accident was when the child was lying between the .wheels of the car, which was probably the truth. The evidence of the witnesses upon the part of the defendant, on the contrary, is entirely harmonious and consistent with the theory of the accident as developed by the testimony. The witnesses are consistent in their statement. They are not contradicted, either by themselves or by any of the other witnesses, in any essential particular. It is manifest that the witness Jacobs was willing to swear to anything which would tend to establish a liability upon the part of the defendant. He deliberately swore that, after the child was run over, he saw the car driver stop the car, and run away. This he reiterates, and is then compelled to admit that he did not see him do anything of.the kind. This witness further places the child in such a position that it was a physical impossibility for the accident to have happened in the manner described by him. Taking into consideration all these facts, it seems to us that there was no credible testimony upon the part of the plaintiff which would justify the submission of the question of the negligence of the defendant to the jury. Each and every witness of the plaintiff is impeached by himself, and, in addition, is shown to have testified falsely by the facts established upon overwhelming evidence.

Upon the whole case, we are of the opinion that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    John Porter Shannon, Resp’t, v. Margaret C. Pentz et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Wills—Cokstbuctioiv
    The will, in this case, was construed to provide (1) that the husband and daughter shall have the income to the estate during their joint lives, and, upon the death of either, that the survivor shall, for the rest of her or his life, have the share of the decedent; (2) that, after the expiration of these life estates, the estate shall go to the daughter’s issue, at the age of 21; and (3) that, in default of such issue, it shall go to the cousins of the daughter, who are the nieces and nephews of the testatrix,
    2. Same.
    A gift or devise to a person at his majority, or a direction of payment or transfer to him at that time, imports a condition subsequent not precedent, which permits the vesting of the estate or interest and merely defeats it on , the nonfulfillment of the condition.
    3. Same.
    Where nothing is interposed between an infant and his enjoyment of the possession of an estate, except his own minority, he has a vested interest,
    4. Lis pendens—Effect of.
    A person cannot, after the filing of a lis pendens, obtain a title from a party to the'action which will defeat the judgment, though the conveyance is made under a power in a will.
    Appeal from a judgment in favor of plaintiff, ,

    Appeal by the defendants, Margaret C. Pentz, Rufus L. Todd (individually and as executor and trustee under the last will and testament of Mary L. Todd, deceased), Adeline R Tucker, Charles S. Lowther (individually and as administrator with the will annexed of Emma J. Lowther, deceased, and Charles Lowther, deceased), Grace E. Lowther, George S. Pentz, Margaret Pentz, Bergh Pentz, and Dewitt Pentz, from an interlocutory judgment entered in the office of the clerk of the county of New York on the 26th day of September, 1895, overruling exceptions to the report of a referee, confirming said report, and directing a sale of the premises therein described, and partition of the proceeds. The property partitioned belonged originally to William Shannon and Rachel Shannon, his wife, each of whom died intestate in, 1883. They left surviving six children. One of these was Mary L. Todd, who died in 1890, leaving surviving her husband, Rufus L. Todd, her daughter, Adeline R Tucker, and an infant child of the latter Kenneth T. Tucker. She left the following will, which was admitted to probate the same year:
    “ In the name of God, amen. I, Mary L. Todd, wife of Eufus L. Todd, of the city of New York, New York, being of sound mind, declare this to be my last will and'testament: . First. After my lawful debts are paid, I give to my husband, Eufus L. Todd, one-half the income of my estate, real and personal, during his lifetime. Second. I give to my daughter, Adeline E. Tucker, one-half the income of my estate, personal and real, during her lifetime. Third. Should my husband die and my daughter die, the estate to be divided equally between my daughter’s issue at the age of twenty-one. Fourth. Should my husband die first, the estate to go to miy daughter, and at her death to her children; if no issue, to her cousins. Fifth. Should my daughter die first, leaving no children, the estate to go to my husband, and at his death to my nieces and nephews. I hereby appoint Eufus L. Todd to be my true and lawful executor, without bonds, to sell and invest as he may think best to enhance the value of my estate. This my last will and testament. In witness whereof, I have hereunto subscribed my name and affixed my seal the twentieth. dav of August, one thousand eight hundred and eighty-nine. . ■ ‘ MAEY L. TODD.
    “Witnesses: .
    “Addle E. Todd Tucker.
    “Bachel P. Shannon.”
    The defendants Eufus L. Todd and Adeline E. Tucker answered, setting up the invalidity of all the provisions of this will except those appointing Mr. Todd executor and trustee, and claiming for Mr. Todd, as such executor and trustee, the proceeds of the sale of Mary L. Todd’s one-sixth interest. The judgment appealed from decrees that the will is valid, and that its provisions determine the rights of the parties to said one-sixth interest. Eufus L. Todd, individually and as executor. and trustee, Adeline E. Tucker, and seven of the other defendants, appeal. Of these other seven, three, by their answers, acquiesced in the judgment prayed for in the complaint, and four did not plead at all. On April 30, 1895, after the commencement of the action, the filing of the lis pendens, and the .joinder of issue, but before the referee had filed his report, or judgment had been entered, Eufus L. Todd, individually and as executor and trustee of Mary L. Todd, deceased, and Adeline E. Tucker, joined in a conveyance to one Gilbert M. Todd of the one-sixth interest formerly belonging to Mary L. Todd. No change in the record was made by joining the grantee, or otherwise.
    W. A. Boyd, for app’lts; Yellott D. Dechert, for pl’ff and resp’t; George C. Holt, guardian ad litem, for resp’ts Porter C. Shannon and Gertrude M. Shannon; Charles Donohue, Charles W. Coleman, and Frank L. Donohue, guardians ad litem for various infant def’ts who have not appealed, file a brief uniting with the appellants in asking that the judgment, as it stands, be reversed.
   BARRETT, J.

—The will of Mary L. Todd, the validity fo ■which is the only substantial question on this appeal, presents, when all its provisions are compared, a fairly plain and consistent scheme. The first and second clauses provide that husband and daughter shall each have half the income of the estate for life. The third clause discloses the general intention that at the end of these life estates the property shall go to the daughter’s children, if any, when of age. The fourth clause enlarges the daughter’s rights, if she outlives the husband, by giving her all the income for life from the time of his death. It reasserts the right of her children to the remainder, and, if there are no children, gives such remainder to her cousins. The fifth clause provides that should the daughter die first, leaving no children, the estate shall go to the husband for life, and at his death to the nieces and nephews ' of the testatrix. Read by itself, and literally, this clause disposes of nothing, except in one contingency,—the predecease of the daughter without children. Read, however, in connection with the prior provisions of the will, it is abundantly plain that the condition of the daughter’s leaving no issue was meant to affect only the remainder given to the nieces and nephews, and not the additional half of the income to go to the husband. The husband acquired similar rights by the fifth clause to those which the daughter acquired by the fourth. Talcing the will as a whole, the following is the true construction of the provisions: (1) That the husband and daughter shall each have .half the income of the estate during their joint lives, and, unon the death of either, that the survivor shall, for the rest of his or her life, have the share of the decedent; (2) that after the expiration of these life estates the estate shall go to the daughter’s issue, at the age of twenty-one; and (3) that, in default of such issue, it shall go to the cousins of the daughter, being the nieces and nephews of the testatrix. A somewhat different construction is urged upon us by counsel, viz. that, if the husband should die first, then, by the terms of the fourth clause, the children take at once upon' the daughter’s death, and that only in the event of the daughter’s dying first is their taking postponed till their majority. This is not a harmonious view of the general scheme of the will. The third clause should be considered in connection with the fourth clause, as much as with the fifth. If it may supply a deficiency jn the fifth clause by its display of intention that the children shall have the first right to the remainder, it ought also to be permitted to „ .qualify the fourth clause by showing how they shall‘take that remainder. '

This brings us to the consideration of the question as to the validity of the third clause. It seems to be the unanimous opinion of counsel that this clause, as it stands, violates the statute against perpetuities. The respondents seem to concede that the will can be sustained only by treating the provisions of the third clause as an alternative contingency, distinct and separable from those provisions which do not violate the statute. The appellants, upon the other hand, invoke the doctrine that, to render future estates valid, they must be so limited that in every possible contingency they will absolutely terminate within the statutory period. We deem it unnecessary to pass upon these contentions, for the reason that in our judgment the clause in question does not violate the statute against perpetuities. Ho rule of con struetion was earlier or more firmly fixed in the English law than the one that a gift or devise to a person at his majority, or a direction of. payment or transfer to him at that time, imported a condition subsequent, not precedent, which permitted the vesting of the estate or interest, and merely defeated it on the nonfulfillment of the condition. Boraston’s Case, 3 Coke, 19; Edwards v. Hammond, 3 Lev. 132; Bromfield v. Crowder, 4 Bos. & P. 313; Hunt v. Moore, 14 East, 601; Doe v. Newell, 1 Maule & S. 327 ; Goodtitle v. Whitby, 1 Burrows, 228; Farmer v. Francis, 9 Moore, 310; Greet v. Greet, 5 Beav. 123. These cases are distinguishable from the case at bar in the feature, present in most of them of a limitation over in case the taker should during minority. Jarman, in his work on Wills, has declared this to be an essential feature of the doctrine. 1 Jarm. Wills (5th Ed.) p. 809, But the cases hardly bear him out in this view. Indeed, this feature was absent in Boraston’s Case, which was the fountain head of the doctrine. In Roome v. Phillips, 24 N. Y. 463, there is a quasi recognition of the distinction made by Jarman. Judge Davies there stated the rule as follows (page 465):

“A devise to A. in fee, when he attains the age of twenty-one years, becomes a vested remainder provided the will contained an intermediate disposition of the estate, or of the rents and profits during the minority'of A., or it directed the estate to go over in the event of A. dying under age.”

- The will there contained such a limitation over, so that the precise question here presented was not decided, nor was it intimated in distinct language that the result would have been different but for the limitation over. This rule was extended by Rapallo, J., in Manice v. Manice, 43 N. Y. 303;, so as to cover cases where there is no limitation over. There the testator directed his trus^ tees, after the termination of an estate for the life of the widow, to sell certain property, have the rest appraised, divide the whole into 12 equal parts, and pay over to each of his sons and daughters a specified number of such parts. -There was limitations over in case of death before the division. The learned judge showed conclusively (pages 365, 366) that the nondisposition of the rents and profits intermediate the death of the widow and the creation of the*shares (a marked feature of the present case) was the strongest possible indication that the right of the children vested at once since thus the right to the income would attach thereto, and be disposed of. “But for the alternative provisions in this will,” said the learned judge (page 370), “providing for the contingencies of death of sons and daughters before the division, there can be no doubt that an indefeasible estate in remainder was created by the will in favor of each son, which vested in him immediately upon the death of the testator, and which would pass to his heirs or assigns if he died or conveyed before the death of the widow. * -» These remainders were limited upon the precedent trust estate, for the life of the wife, and upon her death, each would be seised and possessed of an undivided interest in the, realty and personalty, subject only to the exercise of the power of division and sale given to the executors.” Proceeding to consider the effect of these limitations, he decides that they do not alter the result which he has described. This reasoning would seem to dispose of the point in question, notwithstanding the existence there of an ulterior limitation. But there is a later case, more closely in point, and one which is quite decisive. Radley v. Kuhn, 97 N. Y. 26. There, after an estate to G. for life, it was provided that, “if he should die leaving any lawful children, ‘the said real estate * * * is to become theirs in fee when they arrive at the age of twenty-one, and the same is devised accordingly.” There was no limitation over. It was held that on O.’s death the estate vested absolutely in his children, and' if they died under age, in their heirs. Rapallo, J., states the rule without qualification (page 35): “It is well settled that an-estate in land is devised to an infant ‘when he attains the ages of twenty-one years, his attaining that age is not a condition precedent to the vesting of his estate, but a simple postponement of the period at which he shall take possession. He takes a vested fee.” If he adds, there is a contingent limitation over in case he does not attain majority, it does not prevent the vesting of the fee in the first devisee, but merely renders such fee defeasible by condition subsequent. * * * " When, therefore, as in the present case, there is no such contingent limitation over, the devisee or devisees to whom the land is given ‘when they become of age’ take an absolute and indefeasible fee, and in case of their dying under ago the fee vests in their heirs, and not in the heirs of the testator.” The direction to divide which is found in the present will makes aven plainer the intention to postpone the enjoyment merely, and so gives still stronger reason for applying the rule, boardly stated in Manice v. Manice, 43 N. Y. 380, that where nothing is interposed between the infant and his enjoyment of the possession of the estate, except his own minority, he has a vested estate. It is plain, therefore, that provision for the children, as it stands, is valid.

, The referee was quite”right in ignoring the grant to Gilbert M. Todd. The grantee could no more, after the filing of the lis pen-dens, obtain a title from a party to the action which would be superior to and supersede the judgment, by means of a power of sale contained in a will, than he could by a transfer of an interest held by the grantor in his individual capacity. As to the defense of a prior action pending to partition the same property, it is enough to say that none of the appellants pleaded the fact, or raised the point at the trial.

The judgment- correctly determined the rights of the parties in the premises. There is no other valid reason for assailing it, and it should be affirmed, with costs to the plaintiff and to the guardian ad litem for the infant defendants Shannon to be paid out of the fund. All concur.


text:
    Jacob R. Shipherd, App’lt, v. Charles B. Crowell, Resp’t.

      (Supreme Court, Appellate Division,. Second Department,

      Filed February 4, 1896.)
    Trial—Stipulation.
    A stipulation for the discontinuance of an action and for the surrendei of certain letters written by one of the parties, on entry of a judgment in, or the discontinuance of. another action, is not enforceable as to the surrender of the letters, where such action was not discontinued and no ■ judgment entered therein.
    Appeal from a judgment for defendant, entered on a decision dismissing the complaint on plaintiff’s opening.
    D. 0. Calvin, for app’lt; McKoon & Luckey, for resp’t.
   BARTLETT, J.

—This is a suit in equity, the main purpose of which was to prevent the defendant from prosecuting a pending action for divorce against his wife, so far as that action involved any charges of misconduct against the plaintiff herein, and also to secure the surrender to the plaintiff of certain letters written by him, which the defendant, Charles B. Crowell, intended to use in his divorce suit against his wife. The complaint sho’ws that Mr. Crowell had sued Mr. Shipherd for alienating Mrs. Crowell’s affections, in an action which was pending at the same time as the divorce suit, already mentioned. Before the causes were reached for trial the parties entered into a stipulation, which provided, among other things, for the discontinuance of the suit which Mr. Crowell had brought against Mr. Shipherd, and contained the the following paragraph in regard to the letters to which refererence has already been made : “All letters written by defendant, Shipherd, together with any wrappers containing them, which are the subject in part of the actions of Crowell v. Crowell and Crow-ell v. Shipherd, after the trial of the case of Crowell v. Crowell, shall be thereafter destroyed in the presence of the attorneys for the parties, and all such letters, etc., shall be-.produced for such purpose.” This provision was subsequently modified, so as to require the letters, instead of being- destroyed, to be delivered to Mr. Shipherd or his attorney within three days after judgmemt in the divorce suit of Crowell v. Crowell, of within three days after the discontinuance of that suit, if it should be discontinued. The plaintiff’s alleged grievance in the present case is that the Crowell divorce suit was not brought'in good faith, and that no attempt has been made in good faith to bring it to trial; that the attorneys for Mr. Crowell have been persistently publishing, through the newspapers and otherwise, false and injurious statements concerning him and Mrs. Crowell; that, when he consented to the stipulation concerning the letters, he did so only upon' the assurance or the attorneys for Mr. Crowell that the divorce suit would be brought to immediate trial and that his letters would be immediately surrendered. All these statements, however, if true, do not give plaintiff any cause of action for such relief as he seeks in the case at bar. His rights must be measured by the stipulation into which he entered, and that, so far as its contents are disclosed in the complaint, contains no provision binding Mr. Crowell or his attorneys to bring the divorce suit to trial at any particular time. So far as Mr. Shipherd’s letters are concerned, the necessary implication, from the language used, in the stipulation, is that they are to remain in the hands of Mr. Crowell until the lapse of three days after the final disposition of the action for divorce. In view of this portion of the agreement, it is of no importance whether it be true or not, as alleged in the thirteenth subdivision of the complaint, that Mr. Crowell’s possession of those letters was unlawfully acquired, in the first instance. His right to retain them was recognized by the stipulation. The complaint was properly dismissed, and the judgment appealed from should be affirmed, with costs.

All concur.


author: BROWN, P. J.

text:
    Edgar P. Southard, Resp’t, v. City of Brooklyn, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Evidence™Admission oe Improper-Remedy.
    In an action for damages to land caused by water leaking from a city reservoir, and also for permanent injury caused by the location of the reservoir, evidence of depreciation in value of the land from proximity to the reservoir is clearly inadmissible.
    2. Same.
    In the absence of a motion to strike it out or an instruction to disregard it, it is impossible to say that the error was cured by an instruction that the erection of the reservoir gave plaintiff no right of action, and that his-right of recovery was limited to the injury to the rental or usable value of the land to the commencement of the action and such permanent injury thereto as had been caused by leakage from theyeservoir.
    Appeal from a judgmemt for plaintiff, and from an order denying a motion for a new trial.
    Henry Yonge, for app’lt; Greorge Wallace, for resp’t.
   BROWN, P. J.

—This action was brought to recover damages caused by the flooding of plaintiff’s lands by water, which leaked from a reservoir of the defendant, and the plaintiff had a verdicfc for $850.

Tiie cause of action set forth in the complaint appears to have included a claim for permanent injury to the land, or a depreciation in the value thereof, caused by the construction of the reservoir. The jury was, however, instructed by the court that the erection of the reservoir gave the plaintiff no right of action, and that the plaintiff’s right to recover was limited (1) to the injury to the rental or usable value of the land up to the commencement of the action, and (2) to such permanent injury thereto as had been caused by the leakage of water from the reservoir. This instruction was clearly correct.

The property consisted of about four acres of land within the -corporate limits of the village of Rockville Center in Queens county. Upon it was a dwelling house and some outbuildings adapted to and used for raising poultry, which stood upon high ground, and were not affected by the water. The amount of land overflowed was about one-half an acre, which was lower than the land around it, and received the natural drainage therefrom. In the winter time, and in wet seasons, the water gathered there to some extent, and left the ground in a soft condition. The plaintiff testified that he did not cultivate any of the land, but held it for sale as a private residence. There were three occasions when the water leaked from the reservoir, viz., August, 1892, February, 1894, and November, 1894. Upon the first occasion the water stood on the land for two or three months, and on the latter occasion about eight weeks. On this occasion the highway in front of the property was flooded, and ingress and egress to the property was had over adjoining land. On none of these occasions were any crops destroyed, nor does the testimony show that plaintiff was put to any expense to repair any injury done to the land, or that there was any loss of use or rent. The only direct loss which the testimony discloses was that three- cherry and some smaller trees were killed.

From this summary of the testimony, we think it is clear that if the case had rested upon this evidence, the jury would have had no basis-from which to calculate the damages, and the case would have justified a verdict for a nominal sum only. The opinion of witnesses upon the question of damages was, however, offered and received, some of it over the defendant’s objection and exception. I quote substantially the whole of it as follows: From the testimony of the plaintiff: «

“ Q. What has been done with the property since they commenced to flood it?” A. I have been unable to do anything with the property as regards selling it. Q. What was the amount of -flooding per year to that property? A. $250. Q. Has the place any selling or rental value to-day? A. Mot in proportion to its value at all. It might be sold for farming purposes. Q. It has no rental value whatever for the purposes for which you hold it ? -(Objected to by the defendant as irrelevant, immaterial, and incompetent. Objection overruled. Defendant excepts.) A. Mo, .sir; it has not.”

John T. Rancie was called as a witness by the plaintiff, who, having testified that he was a real-estate agent in Rockville Center, and acquainted with the value of property there, was asked what the rental value of the property was before this reservoir was built, and what he estimated its rental value with the presence of the reservoir. These questions were admitted over the defendant’s ■objection and exception, and the witness answered that the rental before the reservoir was constructed was from $250 to $300 per year, and after it was constructed $100 per year. The same questions, against the defendant’s objection and exception, were asked of and answered by Lorenzo D. Simons, another real-estate agent, •called by the plaintiff. John H. Southard, a witness called for the plaintiff, was also permitted, against the defendant’s objection, and exception, to testify that, “to fix up” the land flooded, it was -necessary to fill it up with earth, and raise it two or three feet, and that to make that improvement it would cost about $900. It further appeared, on cross-examination of the plaintiff, that for the year 1895 two acres of the land had been rented for agricultural purposes for five dollars per acre.

This testimony all falls into two classes: (1) That relating to permanent depreciation of value of the land arising from its proximity to the reservoir; (2) the cost of filing up the land to a height that would be above the height to which the water leaking from the reservoir had risen. The first class was clearly inadmissible. It was consistent with the allegation of the complaint, but the plaintiff plainly had no right of action for any depreciation in the value of his land arising from the erection of the reservoir. The court so instructed the jury, but it denied a motion made to strike out the testimony, and the jury were not told to disregard it. It is impossible for this court to hold that it may not have affected their judgment. Its admission, and the refusal to strike it out, were errors, for which the judgment may be reversed.

The judgment is reversed, and a new trial granted, with costs to abide the event.

All concur.


author: HATCH, J

text:
    John Tomko, App’lt, v. The Central Railroad Company of New Jersey, Resp’t.

      (Supreme Court, Appellate Division, Second, Department,

      Filed Feb. 4, 1896.)

    1.'Master and servant—Contributory negligence.
    A person cannot place himself in a dangerous position and omit the vigilance which would apprise him of the danger, without being chargeable with negligence.
    3. Same.
    When a party voluntarily exchanges a safe place for one of danger, he assumes whatever of ride there may he, from any source, in the use of the dangerous place, and cannot he heard in complaint if he is thereby injured.
    8. Same.
    The track of a railroad is a dangerous place, and when a person’s employment calls him to its use, he is necessarily exposed to danger from passing trains, and is required to he on the lookout iu all directions.
    Motion for a new trial on a case and exceptions, ordered to be heard in the first instance in the appellate division.
    W. C. Beecher, for pl’ff; George Holmes and Robert Thorne, for def’t.
   HATCH, J

—The substantial claim made by plaintiff, in his opening to the jury, was that the defendant was guilty of negligence in running trains and engines over its tracks, at the place where the injury occurred, in a reverse way from which trains were ordinarily run thereon at other places upon its line, without promulgating a rule relating thereto, or otherwise bringing home notice to plaintiff of the existence of such custom. In the view we take of this case, it is not necessary to determine what defendant’s obligations were in this respect. Plaintiff was a track laborer ; had been employed upon the defendant’s road for a period of two years, but, at the particular place of injury, only a short time; and was without'information of the afore-mentioned custom of operating trains, but supposed that they were operated at this place in like manner as at other places upon the line where he had before worked. While engaged in his employment, on the west-bound track, facing towards the west, a train passed him on the east-bound track. The train ran to a siding a short distance beyond, and shunted its cars thereon. The engine then started on its return over the same track that it had run out on. At about the same time a train was running upon the west-bound track, and both engines ran nearly side by side on the different tracks in the same direction. Plaintiff, hearing a bell on the locomotive, looked over his shoulder, saw the locomotive coming west, and stepped from the west-bound track to the east bound track, where he was, shortly after, struck by the engine approaching upon that track, and seriously injured. It does not appear that he looked in either direction when he stepped upon the east-bound track, or that he, in any manner, made any observation to protect himself from injury while upon this track. It is not apparent why he did not discover the approach of both engines ishen he looked to the east. They were both running near together, and it does not appear but that both were visible to the sight. No obstructions existed, and, if he looked and saw one, care would have enabled him to see the other. At least, no reason is shown why he should not have seen it. The law exacts care and caution, having regard to the dangers to be encountered. A person cannot place himself in a dangerous position, and omit the vigilance which would apprise him of the danger, without being chargeable with negligence. The use by plaintiff of his faculty of sight, exercised with care, would have apprised him of the approach of both engines. His failure in this regard constitutes negligence. It also appeared that there were a number of employes at work with the plaintiff who received no injury, and counsel stated that the north side (north of the west-bound track) was the safe side, but that plaintiff went off to the south side. Here was a perfectly safe place where plaintiff could have stepped as easily as to make use of the dangerous place. He voluntarily chose the latter, and when he did so it became incumbent upon him to exercise all his faculties to protect himselfi The track of a railroad is a dangerous place, and when a person’s employment calls him to its use, he is necessarily exposed to danger from passing trains, and is required to be upon the lookout in all directions. This is a risk which is necessarily assumed as an incident to his employment; and, when, he voluntarily exchanges a safe place for one of danger, he assumes whatever of risk there may be, from any source, in the use of the dangerous place, and cannot be heard in complaint if he is thereby injured. Heaney v. L. L. Railroad Co., 112 N. Y. 122 ; 20 St. Rep. 296. And this result follows no matter how, or in what manner, defendants uses its tracks or operates its trains. The exceptions should be overruled, motion for a new trial denied, and judgment order for defendant, with costs,

All concur.


author: CULLEN, J.

text:
    Morris Robinson, Resp’t, v. Metropolitan Insurance Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb'ry 4, 1896.)

    1. Insurance—Application.
    Where the insured makes true answers to the questions contained in the application for insurance, he is not responsible for the falsity of the answers inserted by the company’s agents,
    S. Same.
    If the company, at the time it issues the policy, is apprised of the actual condition of the insured, the term “ sound health” is to he construed as referring only to her physical condition, apart from mental imbecility, or the fact that the insured was crippled,
    S. Same—Waiver.
    Where the policy provides that the action must be brought within six months after the death of the insured, such condition can be waived and the defendant, by his conduct, estopped from setting up that defense,
    4. Same.
    Where the insurer prepares and receives from the insured proofs of loss, which, according to the terms of the policy, must be made on their own blanks, the company must, if it rejects the claim, seek out and return to the insured the policy and papers which it has obtained from him.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    Grout, De Fere & Mayer, for app’lt; Magner & Hughes, for resp’t,
   CULLEN, J.

—The action is to recover $176, the amount oE an insurance effected by the plaintiff on the life of Ms daughter. This daughter was, from a short time after birth, an idiot and a cripple. The plaintiff can neither read nor write, and the defendant’s agent who took the plaintiff’s application could write but very little more than his own name. According to the evidence of the plaintiff, he was approached by the defendant’s agent and asked to take out this insurance. The agent saw the daughter, and the plaintiff stated to him what had been her condition. In other respects than those indicated, she seems to have been in good physical health. The agent, being unable to write, had the plaintiff make his mark to a blank application. This was taken to one of the local superintendants of the defendant, who was informed of the condition of the woman insured. The answers to the questions contained in the application were then filled up in the superintendent’s office, and a policy of insurance issued by the defendant, The plaintiff paid the weekly premiums for almost five years, when his daughter died. There was also evidence that, during this period, some of: the superintendents and agents had visited the plaintiff, and seen the daughter, who appears to have been regarded by them as an object of curiosity.

We think the motion to dismiss the complaint was properly denied. If the plaintiff made true answers to the questions contained in the application, he was not responsible for the falsity of the answers inserted by defendant’s agents. O’Brien v. Home Ben. Society, 117 N. Y. 310; 27 St. Rep. 326. The provision in the policy that no obligation was assumed by the defendant unless, at its date, the insured was alive and in sound health, did not void the policy. The term “sound health” is capable of different meanings. An idiot may be in sound health physically, and the same is also true of a cripple. If the defendant, at the time it issued the policy, was apprised of the actual condition of the insured, the term “sound health" should be construed as referring only to her physical condition, apart from her mental imbecility or the fact that she was crippled.

Nor was the plaintiff absolutely barred from maintaining the suit by the lapse of time between the death of the insured and the commencement of this action. The policy does provided that the action must be brought within six months after the death of the insuree; but this condition could be waived, and the defendant, by its conduct, estopped from setting up that defense. Ames v. Insurance Co., 14 N. Y. 253. In this case the defendant prepared and received from the plaintiff proofs of loss, which according to the terms of the policy, must be made on their own blanks. It had also taken from him the policy, and the receipt or pass book, showing the payment of the premiums. According to his story, evasive answers were given to his application for payment, and his book and policy still retained. As soon as notified of the positive refusal of the company to pay, he began this action. We think this course of conduct by the defendant operated as a waiver of the condition. It was but fair that, if they had rejected the claim, they should have sought out and returned to the plaintiff the policy and papers which they had obtained from him. The policy alone contained the six-months limitation, and it may well be that the plaintiff, an ignorant man, had no knowledge of this condition, and would havd none until the defendant returned the policy. To keep this policy, and then refuse to pay, on the ground of lapse of time, would operate as a fraud.

The request to charge (at folio 134) was refused by the court, other than as it had charged. We think in this there was no-error. The court had already charged that the limitation was six months from the death of the person insured. If the request asked the court to charge only to that effect, the repetition was unnecessary. If the request went beyond that, it would be bad, as exeluding the possibility of waiver or estoppel.

The judgment and order denying motion for a new trial should be affirmed, with costs.

All concur.


text:
    Frank M. Sanger, Resp’t v. Thomas H. French, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Appeal—Resettlement of order.
    The appellate division of the supreme court may resettle an order made by the general term.
    Motion for a resettlement of the order of reversal.
    A. J. Dittenhofer, for motion; A. Goodwin, opposed.
   PER CURIAM.

—This is a motion for the resettlement of am order entered upon the decision of the general -termj in order to make the same conform to the actual decision of the court. The ground upon which this motion is opposed is that this court has not power to entertain any 'such motion. We do not think that this objection is well founded. This court evidently has the power to direct the entry of a proper order, where an improper one has been entered upon the decision of the general term. The general term always exercised that power, notwithstanding the change in the personnel of the court; and as all the jurisdiction of the general term has devolved upon the appellate division, there seems to be no valid reason why it should not exercise such power in a proper case. We have already held that the court has power to entertain a motion for a reargument of an appeal which has been decided by' the general term of the court of common pleas, and also to open a default which had been entered in the general term of the superior court. Being, as already stated, the successor of these several general terms, the appellate division may, in furtherance of justice, direct the amendment of a record. In this case it appears plainly, from the opinion handed down upon the decision of the appeal, upon what ground such decision was rendered;

We think that the motion for resettlement should be granted,.


text:
    Mary A. Weed, App’lt, v. Emily Whitehead et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb'y 4, 1896.)

      % Contract—Reformation—Evidence.
    In an action to reform, a written contract, parol evidence of a mistake-therein must he most clear and convincing.
    2. Same.
    The evidence, in this case, was held not to justify the reformation of thecontraet.
    3. Judgment—Vacation.
    Though an assignment of a mortgage does not express the agreement a® it was understood by the assignors, they are not entitled to have the judgment foreclosing said mortgage vacated and to he permitted to serve an answer where the assignee parts with her interest in reliance upon the covenant of guaranty and refrains from bidding at the sale, in further reliance thereon, and it is impossible for the parties to be restored to their original position.

      Appeal from an order, vacating a judgment of foreclosure and granting leave to some of the defendants to serve an answer in the action and interpose as a defense that the guaranty in the assignment does not express the true agreement between the parties and to ask tó have the same reformed.
    James E. Chandler, for app’lt ; Charles T. Terry, for resp’ts.
   BROWN, P. J.

—This action was brought to foreclose a mortgage upon real estate made b}r one Osborne to the respondents Richard H. Mullineaux and Alonzo Guest, and by said Mullineaux and Guest assigned to the plaintiff. The assignment contained the following covenant:

“It is further covenanted and agreed, as part of this assignment, that the parties of the.first part, their legal representatives and assigns, will pay to the said party of the second part, her legal representatives and assigns, any deficiency which may arise on a foreclosure sale of said mortgage; provided, however, such deficiency shall not exceed the principal sum of said mortgage and one hundred dollars in addition; and provided, further, that such foreclosure proceedings shall be begun within sixty days after said mortgage may become due and payable by any of the covenants therein or by its terms.”

The respondents were made defendants in the action, and part of the prayer for judgment was that they should be adjudged to pay any deficiency arising upon the sale of the mortgaged premises not exceeding $2,100. The respondents appeared in the action by attorneys, but did not answer the complaint, and, the property having been sold, a judgment for $439.19 deficiency was duly entered against the respondents, on July 13, 1895. This judgment was thereafter assigned by the plaintiff to William I. Ticknor, lie paying the full amount therefor. The order appealed from has vacated said judgment, and granted leave to the respondents to serve an answer in the action, and interpose, as a defense, that the covenant of guaranty in the assignment does not express the true agreement between the parties, and to ask to have the same reformed. It is the contention of the respondents that the true agreement was that they should pay the difference between $2,100 and the proceeds of the sale of the mortgaged property. We are of the opinion that the order should" be reversed, and the motion denied.

It appears from the affidavits that the respondents- solicited the plaintiff to take an assignment of the mortgage. This the plaintiff agreed to do, provided a guaranty thereof was given by the respondents. The terms of the guaranty were a subject of negotiation between the attorneys for the parties, and were finally agreed upon at a meeting held at the office of the respondents’ attorneys at New Rochelle, at. which there were present Mr. Guest, Mr. James E. Chandler, representing the plaintiff, and Mr. J. Addison Young, representing the respondents. The affidavits of Mr. Young and Mr. Guest differ as to the form of the agreement made at that meeting. Mr. Young swears that respondents agreed “to pay the difference between the principal sum of said mortgage and one hundred dollars in addition thereto and the proceeds of the sale of said mortgaged property upon a foreclosure.” Mr. Guest swears that they agreed “to guaranty the principal of said bond and mortgage and one hundred dollars in addition.” Probably the legal effect of the contract, whichever way it is stated, is the same. But some facts appear in the affidavit of Mr. Chandler which are not denied, and which are most material in determining the question before us. He admits that the terms of the guaranty were agreed upon at Mr. Young’s office, as stated in the affidavits of Messrs. Young and Guest, but he states that it was agreed that Mr. Young should prepare the assignment, and insert therein the covenant regarding deficiency, which had been agreed upon, and that after the assignment was executed Mr. Young was to cause it to be recorded in the register’s office at White Plains, and that he (Mr. Chandler) was not to see the assignment until after it was recorded. This course taken for the reason that, at the time of the meeting aforesaid, the bond and mortgage were held by the Bank of Hew Bochelle, and it was necessary that they should be reassigned by said bank to the respondents, before the assignment could be executed to the plaintiff. He further swears that, after the form of the guaranty had been agreed upon, he paid to Mr. Young the amount of the mortgage, and that the deed of assignment to the plaintiff was subsequently drawn by Mr, Young after he (Mr. Chandler) had returned to Hew York, and that the covenant of guaranty contained therein is in Mr. Young’s handwriting. In the face of these undisputed facts, the charge in the moving papers that the covenant, as it appears in the assignment, was inserted therein through fraud or mistake on the part of Mr. Chandler, is wholly without support. It appears, without contradiction, that it was written into the assignment by Mr. Young, the respondents’ attorney, and while he may have been mistaken as to the purport of the agreement, if there was any mistake in the form in which it was inserted in the written paper it was his mistake alone. Mr. Chandler swears positively that the covenant was agreed upon in the precise form in which it appears in the assignment. He is corroborated by the instxument itself, and this corroborative evidence lias great force from the fact that the writing was the act of Mr. Young. It is difficult for us to believe that Mr. Young or Mr. Guest could have understood the agreement to have been what they now claim it was, and yet, immediately after it was agreed upon, could have made so serious a mistake in the preparation and execution of the written instrument. The deliberate character of that act, performed entirely apart from and without interference from the other party to the agreement, and when the transaction was fresh in their minds, is the strong evidence that Mr. Chandler’s version of the transaction is the correct one. The authorities all require that parol evidence of a mistake in a written contract must be most clear and convincing; the language of some of the cases is, “the strongest possible.” Courts of equity do not grant the remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty, of error. 2 Pom. Eq. Jur. (1st Ed.) § 859; 1 Story, Eq. Jur. § 157; Southard v. Curley, 134 N. Y. 148; 45 St. Rep. 778, and cases cited in the opinion. The utmost that can be determined from the testimony before us is that the matter is left in doubt. But a court of equity would not be justified, upon such evidence, in granting the relief which the respondents seek.

But, assuming-that the assignment did not express the agreement as it was understood by the respondents, there is no- proof in the moving papers of a fraud or of a ihutual mistake. The plaintiff parted her money in reliance ujion the covenant of guaranty, and refrained from bidding at the sale, in further reliance thereon. The property has been sold, and a third party has become the owner thereof. The sale cannot be set aside, and it is impossible for -the parties to be restored to their original positions. This condition of affairs is solely the result of the respondents’ neglect. There has been no concealment, on the part of the plaintiff, of her claim. The covenant is set out in full in the complaint, and it is there alleged that the respondents are liable for any deficiency that may arise on the sale of the mortgaged premises up to the amount of $2,100, and judgment is demanded against them for that amount. The respondents have not been misled, but they have been negligent, nand, as a result of their neglect, it is now beyond the power of the plaintiff to protect herself by bidding upon or purchasing the mortgaged property. The right to so protect herself is a very substantial one. It cannot be restored to her, and the order appealed from does not afford any substitute for it.

For these reasons, the order should be reversed, with $10 costs- and disbursements, and the motion denied, with $10 costs.

All concur.


text:
    George R. Bristor, Resp’t, v. Archibald N. McBean, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    Damages—Covenant.
    Where a covenant in a contract is to pay and satisfy and is not a mere agreement to indemnify, a breach thereof gives the party for whose benefit the money is to be paid, the right to recover the amount, whether he-has, or has not, paid anything himself.
    Appeal from a judgment in -favor of plaintiff,, entered on a trial by the court without a jury.
    Alexander S. Bacon, for app’lt; William J. Groo, for resp’t.
   BARTLETT, J.

—The trial court rendered judgment in favor of the plaintiff for the amount of the promissory note sued on, together with interest, less six cents, damages allowed to the defendant upon the counterclaim set up in his answer. The defendant insists that his damages should have been assessed at upwards of $400, instead of six cents, in which event there would have been a money judgment in his favor instead of against him, and this point presents the only question raised by the appeal. The facts concerning the defendant’s counterclaim, as found by the learned trial judge, were as follows: The plaintiff and his wife conveyed certain Baltimore property to the defendant, by a deed under seal, containing an affirmative covenant in these words:

“ There remains ori record a certain judgment of one Tyler against W. B. Bristor and another, one of the grantors of this property, which judgment George R Bristor covenants to pay and satisfy on demand."

The deed was duly delivered, the demand to pay and satisfy said judgment was duly made by the defendant, and at the time of the trial the judgment had not been paid or satisfied. Upon this state of facts, the court held that the damage for the breach of the covenant was nominal only, inasmuch as the defendant had not paid or been called upon to pay the judgment. Under the authority of Rector, etc. v. Higgins, 48 N. Y. 532, it would’seem that the defendant was entitled to a more liberal measure of damages. The covenant of the plaintiff was not a mere agreement to indemnify. It was a covenant to pay and satisfy. Where the contract is in this form, a breach gives the party for whose benefit the money was to be paid the right to recover the amount, whether he has yet paid anything himself or not. The rule which applies is clearly stated by Allen, J., in the case of Belloni v. Freeborn, 63 N. Y. 383, 390, which was an action on a bond, as follows *. “ Had this bond been conditioned solely to indemnify and save harmless from damages, by reason of the liability, the obligee, the recovery would necessarily have been limited to the actual damages sustained by him. He could only have recovered to the amount of actual damnification. When the bond is, as in this case, conditioned as well to pay the debt, or sum specified, as to indemnify and save harmless the obligee against his liability to pay the same, the obligee may recover the entire debt or demand, upon default in the payment, without having paid anything.” In behalf of the respondent the suggestion is made that it is by no means clear that the judgment to which the covenant relates actually remains unpaid. The evidence on this point, consisting in'part of records from the Maryland courts, is not very easy to understand, and the respondent will have an opportunity to litigate it anew, with the aid of additional proof, if he can furnish it, on the new trial which we feel obliged to order, in consequence of the error in respect to the measure of damages on the counterclaim.

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

All concur.